Kalma & Ors v African Minerals Ltd & Ors

In managing complex group litigation, the court may lift a stay for a limited procedural purpose without determining the parties’ ultimate liability for resulting costs. Such an order should preserve the existing trial structure and remain neutral on costs unless that issue is separately decided.

Disclosure custodians should be selected by reference to likely relevance and proportionality. A person should not be excluded merely because relevance is presently uncertain where a review or inquiry may have generated material documents. Conversely, a custodian may be excluded provisionally where the anticipated material is likely to be captured through another custodian, subject to reconsideration if further evidence emerges.

Requests for information about excluded files or folders may be appropriate where proportionate. Commercial sensitivity may justify judicial consideration of non-disclosure, by analogy with public interest immunity.

The ruling arose from a case management conference in claims by 41 remaining claimants concerning alleged unlawful injuries during incidents near an iron ore mine in Sierra Leone in November 2010 and April 2012. The claims implicated local police and representatives of the third defendant, which denied responsibility.

The court considered disclosure by the third defendant and a proposed partial lifting of the stay in six non-lead cases to permit medical assessments. The issues included whether particular individuals should be custodians for a search concerning security policies, governance, police relations and human rights issues, and how excluded files and folders should be treated.

1. Partial lifting of stay. The stay in six non-lead cases was lifted so that the claimants’ advisers could obtain medical assessments and, if necessary, argue later that the associated costs should be borne by the third defendant. The order did not determine liability for those costs. The issue remained for agreement or later decision by the court.
2. The lifting of the stay did not alter the direction that the substantive issues would be tried in six lead cases. The order was entirely neutral on the costs consequences of obtaining the assessments.
3. Custodians. Mohammed Dumbuya and Mohamed Turay were included in Search 3 because, although they were not high-level officials, their liaison roles made it possible that they had documents connected with an internal review or inquiry. Keith Calder and Vossie Lategan were not included immediately because their relevance depended on whether such a review or inquiry existed. If one existed, each was to be searched for the appropriate period.
4. Miguel Perry was not excluded on proportionality grounds at that stage. His role might generate many irrelevant documents, but the proper course was first to attempt to narrow the search using focused keywords, phrases or expressions. The position could be reviewed if agreement was not reached.
5. File servers. It was acceptable not to search files or folders whose names appeared irrelevant, but, provided disclosure of the information was not disproportionate, the claimants’ advisers could require identification of excluded files or folders. If commercial sensitivity arose, the issue could be placed before the court, which could assess the reasons for withholding the names by analogy with a public interest immunity issue.
6. Counsel were directed to agree an order giving effect to the ruling, subject to directions from the Senior Master on costs budgeting.