The High Court has decided against making what would have been an unprecedented order in relation to e-disclosure in an action brought over the behaviour of a mining company in Peru.
In Daniel Alfredo Condori Vilca & 21 others v Xstrata Limited and Compania Minera Antapaccay SA 22 indigenous Peruvians represented by London firm Leigh Day are seeking compensation from mining company Xstrata over the violent suppression of a protest at a copper mine in 2012.
The case is expected to come to trial in 2017.
Earlier this month the High Court heard a complaint by the claimants over the omission of documents by the defendants.
The claimants had asked that Xstrata, represented by magic circle firm Linklaters, be ordered to procure an ‘appropriate re-review of their disclosure’ to be carried out by an independent lawyer.
The application centred around an email exchange that took place on 13 April 2012 in which executives discussed a 'direct, proactive and strong approach' to protesters, who were described as 'sons of whores'.
In his ruling, Mr Justice Foskett (pictured) states that it is not in dispute that the email exchange was relevant and disclosable. However 'the sequence of events leading to this position' led the claimants to submit that there are 'real concerns about the integrity of the disclosure process’.
According to the judgment, the email was seen by Linklaters in a document review but a view was taken, at a senior level, that the email was not disclosable. However, the firm changed its decision after a reply to that particular email was seen in a later tranche of documents.
Foskett said there was no doubt that ‘whatever went wrong on the first occasion’ when the first email was reviewed, it was put right quickly.
Linklaters’ decision not to disclose the first email before seeing the reply was an error, Foskett said. ‘I accept, of course, that it was an error made in good faith, but error it was. I do not think there is any real mileage in trying to decide whether it was nonetheless within the range of reasonable responses to the question of whether it was disclosable.
‘The reality is that it was plainly disclosable on the basis that it may materially advance the case of the claimants and/or may materially adversely affect the defandants’ case.’
Foskett acknowledged that he could direct a review of e-disclosure by another firm of solicitors or by independent counsel ‘even if, as is suggested, it would be unprecedented'.
However such a costly exercise would require strong grounds to be ordered.
He did not consider that one ‘erroneous’ decision was sufficient to justify such an order. ‘As it happens, the erroneous decision was corrected quickly which is what I would have expected from a firm of the standing of Linklaters,’ he said.
Sophie Turner, a solicitor at Leigh Day said: 'The judgment demonstrates the importance of electronic disclosure, particularly in human rights claims against multinational corporations, where proper access to internal corporate documents is essential to a fair trial.'
She said that companies endorsing the UN Guiding Principles on Business and Human Rights must ensure a transparent and constructive approach to the disclosure of documents.
Linklaters said it was unable to comment on the case due to client confidentiality.