Vedanta: GLO imposed

Readers of this blog will recall the Claimants’ victory on jurisdiction in the Nchanga Copper Mine Group Litigation early last year in Vedanta Resources PLC & Anor v Lungowe & Ors [2019] UKSC 20.

The case is now back in the High Court. Fraser J’s decision published today in Lungowe v Vedanta Resources Plc & Ors [2020] EWHC 749 (TCC) gives an indication of things to come.

The GLO issues feature as an appendix to the main judgment on BAILII (link above) – they give a useful outline of the future shape of this litigation.

The most interesting part of this judgment was Fraser J’s approach to the appointment of a lead firm of solicitors in circumstances where the proposed lead claimant firm was reluctant to act on behalf of another firm’s clients. This is not an issue that has received a great amount of consideration in the authorities. He said:

“From the provisions of CPR Part 19, PD19 and these authorities, I derive the following principles:

1. Parties to litigation are generally entitled to be represented by the solicitors of their choice, and to have their case argued by their own representatives. However, in group litigation, that entitlement is qualified. In order properly to achieve efficient conduct and case management of the group litigation, that basic right takes second place to the advancement of the rights of the cohort. This is achieved through the role of the lead solicitor, and the use of counsel chosen and instructed by the lead solicitor.

2. The relationship between the lead solicitor and other firms, whether on a steering committee or otherwise, must be carefully defined in writing. In the absence of agreement, or in the event of deficiency in that agreement, the court will become involved, but this will occur only rarely. It is a reserve power and therefore rarely will it be deployed.

3. In group litigation, all the claimants in that group litigation who will be represented by a lead solicitor (or, as in the British Steel Group Litigation, two firms jointly acting as lead solicitor) are only entitled to instruct one counsel team (although that may have, of course, multiple members). Different groups of claimants are not entitled to instruct different groups of counsel.”

Fraser J then went on to clarify the role of the lead solicitor in an interesting passage:

“So far as principle (1) is concerned, the lead solicitor is not being instructed by the court to act against its wishes for all the other claimants, including those for whom it does not wish to act, who are (or because they are) represented by another firm. The lead solicitor is acting as precisely that – the lead solicitor in group litigation. They will be the contact point for the court and for the other parties in terms of service and communication. They will instruct counsel. The degree of consultation and liaison with other firms also instructed will be a matter of agreement between all the firms. It is to be hoped that rarely would there be disagreements, but if there are, the court has the reserve power in principle (2).”

Finally, he emphasised the particular importance of cooperation between the parties in group litigation in accordance with the overriding objective:

“Group litigation presents particular challenges not only to the court, but also to the parties. Co-operation is an integral part of CPR Part 1.4(2)(a), and the parties have an express duty under CPR Part 1.3 to assist the court to further the over-riding objective. Co-operation in group litigation is of particular importance. The importance of this cannot be over-stated.”

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