Lungowe v Vedanta Resources Plc & Ors

In group litigation, the parties’ ordinary choice of solicitors and counsel is qualified by the need for efficient, proportionate and coherent management of common or related issues. The interests of the group take precedence over separate representation where that is necessary to resolve the GLO issues effectively.

The court may appoint a lead solicitor and require a single counsel team for the GLO issues. Different claimant groups are not ordinarily entitled to instruct separate counsel on common issues. Agreements governing the relationship between the lead solicitor and other firms should be carefully defined in writing. The court’s power to intervene is a reserve power, exercised rarely but available where agreement is absent or inadequate.

Vedanta applied for a Group Litigation Order covering three sets of proceedings brought by several thousand residents of Zambia against Vedanta Resources plc and Konkola Copper Mines plc. The claims concerned alleged pollution and related personal injury, property damage and environmental loss arising from the Nchanga Copper Mine.

The proceedings had been issued at different times and two groups were represented by different firms. The claimants proposed an arrangement preserving separate strands of representation. The defendants sought a single GLO covering all proceedings. The central issues were whether the claims raised common or related issues suitable for group litigation, and how the court should regulate representation, lead solicitors and counsel.

The judgment also recorded that earlier jurisdiction challenges had been dismissed by the High Court, the Court of Appeal and the Supreme Court, including at [2019] UKSC 20.

1. GLO made. The three sets of proceedings raised the same or substantially similar issues of fact and law concerning pollution from the same mine. They were therefore classic GLO proceedings within Civil Procedure Rules 1998, Part 19. Claimant-specific issues, particularly quantum, did not prevent a GLO: paras [25]–[29].
2. In group litigation, the general entitlement to choose solicitors and representatives is qualified. Efficient conduct and case management of the group take precedence where separate representation would fragment the resolution of common issues. The lead solicitor’s role and relationship with other firms should be defined carefully in writing: paras [38]–[40].
3. The court may appoint a solicitor as lead solicitor under rule 19.13(c). That power is ordinarily a reserve power and will generally be used only where agreement is absent or inadequate. The draft arrangement proposed by the claimant firms did not constitute the type of agreement contemplated by Practice Direction 19B: paras [30], [38]–[40].
4. For resolving GLO issues, claimants within the group should ordinarily instruct one counsel team. Separate claimant groups are not entitled to instruct separate counsel merely because they are represented by different firms. Only the rarest circumstances could justify a different arrangement, and none existed here: paras [38], [41].
5. The court has broad case-management powers. Cooperation is an integral part of the overriding objective, and the parties have an express duty to assist the court. Those duties have particular importance in group litigation: para [42]. The court accordingly made a GLO covering all three proceedings and transferred them from the Technology and Construction Court to the Queen’s Bench Division under rule 30.5(2): paras [24], [45].

This was a first-instance case-management decision. The judgment recorded that earlier jurisdiction challenges in the same litigation had been dismissed by the High Court at [2016] EWHC (TCC) 975, by the Court of Appeal at [2017] EWCA Civ 1528, and by the Supreme Court at [2019] UKSC 20.