Vilca & Ors v Xstrata Ltd & Ors

Standard disclosure is directed to documents that may materially advance a party’s case or materially adversely affect another party’s case. It is not confined to the literal wording of pleaded issues, nor does the broader Peruvian Guano approach apply to standard disclosure under Part 31.6. Documents showing the attitude or strategy of influential company personnel may be disclosable where they could bear evidentially on pleaded allegations. An independent re-review of disclosure is exceptional and requires strong grounds. A significant error may be insufficient where it was made in good faith and corrected promptly.

The claimants, 22 individuals, brought claims against Xstrata Limited and Compania Minera Antapaccay S.A. arising from alleged police violence connected with protests near the defendants’ mining operations in Peru. The judgment concerned disputes about continuing e-disclosure, including whether the defendants should procure an independent re-review, whether a witness statement should explain deleted emails, whether the disclosure period should be extended, and whether a sanction should be attached to compliance with an agreed order concerning backup tapes.

The central issues were the proper scope of standard disclosure, the circumstances justifying an independent review, and the appropriate procedural response to alleged deletion and delay.

1. The re-review application was refused. The initial decision not to disclose an email from a very senior Xstrata officer was an error, although it was made in good faith and corrected quickly. The error did not justify the exceptional order sought, namely a re-review by an independent lawyer or firm. Such an order was available in principle, consistently with Nolan Family Partnership v Walsh [2011] EWHC 535, but required strong grounds.
2. Under CPR Part 31.6, disclosure extends to documents that may materially advance a party’s case or materially adversely affect a party’s case. The assessment is evidential and is not restricted to the literal formulation of the pleaded issues. The broader Peruvian Guano test does not apply to standard disclosure, as reflected in Nichia Corp v Argos Limited [2007] EWCA Civ 741 and Shah v HSBC [2011] EWCA Civ 1154.
3. Documents capable of showing the attitude of influential personnel towards those connected with the local protests could be relevant to allegations that the defendants incited, controlled, facilitated or failed to restrain unlawful police conduct. Such documents were potentially disclosable wherever generated. The fact that the attitude was not a pleaded issue, or that the document pre-dated the announced strike, did not remove its potential relevance.
4. The court declined to order an immediate witness statement from Mr Marun about deleted emails. The issue could be addressed at trial. If he did not give evidence and the deletion remained unexplained, the claimants could invite the trial judge to draw an adverse inference in accordance with Wisniewski v Central Manchester Health Authority [1998] PIQR P324.
5. The application to extend the relevant disclosure period backwards was refused. The material relied upon did not show that the existing period was inadequate. No additional sanction was attached to the agreed date for providing backup-tape disclosure because the explanations for delay were accepted and compliance was expected.
6. Linklaters was directed to propose, within 14 days, a plan for reviewing the disclosure exercise against the parameters identified in the judgment. The claimants could comment within 14 days.