High Court forces GLO on Leigh Day and Hausfeld

Fraser: Separate counsel never needed with GLOs

The High Court has rejected efforts by claimant law firms Leigh Day and Hausfeld to keep their actions against a Zambian copper mine operator separate, making a group litigation order (GLO) sought by the defendants.

Saying the two firms were motivated by “commercial advantage”, Mr Justice Fraser called the ‘hybrid’ GLO they proposed – which would keep their cases essentially separate – as having “more similarities to Frankenstein’s monster”.

Leigh Day has two claims running against Vedanta Resources PLC and Konkola Copper Mines PLC over the impact on thousands of local farmers of the Nchanga copper mine in the Chingola region of Zambia – one started in 2015 and another in 2020 after the Supreme Court upheld the English courts’ jurisdiction over the case.

Hausfeld had been involved earlier on but signed up some of the same claimants as Leigh Day. Back in 2015, both firms travelled to Zambia to invite claimants to choose – they plumped for Leigh Day.

But the US-based firm “’re-emerged onto the scene” last year after the Supreme Court ruling, as Fraser J put it, acting for other communities said to be affected by the mine’s activities.

The defendants sought a GLO, which Hausfeld resisted “somewhat strenuously”. Fraser J said: “In reality they wished merely to stand on the side lines until that battle [between Leigh Day and the defendants] was done and then to re-activate their action.”

Initially, the Hausfeld claimants had sought a stay but on the eve of the hearing in February instead – to present its ambition in “a more sophisticated way” – agreed a proposed order with Leigh Day which “on its face appeared to be a GLO but in reality… gave Hausfeld the same benefits as though a stay of proceedings had been ordered”.

Fraser J was unimpressed. “There seems to be no sensible reason why these two defendants – or indeed the court – should have to deal with two almost identical and very sizeable actions, one after the other… Such an approach seems to be the antithesis of the overriding objective.”

He dismissed the claimant firms’ submission that keeping the actions separate would save costs – “I fail to see how this can be so, and is rather the opposite of what is likely to occur” – and other objections that he found “rather alarming”, including that the two groups would still be entitled to instruct separate counsel to appear at the trial.

There should “never be any need” for separate counsel representing different groups of claimants in a GLO, he stressed.

“Underpinning these submissions however, in my judgment, was the commercial advantage to each firm of solicitors of keeping all the interests of all of its own claimants entirely separate from the other firm, and advancing their claims in a way that would permit these actions, highly similar if not identical in terms of facts and causes of action, separate from one another.

“In my judgment, that is not a good reason and should not influence sensible case management. It is also contrary to the ethos of group litigation, which seemed to be ignored in the type of submission made.”

Fraser J said he had issued a detailed written judgment on this to assist in other group litigation in future should such issues arise again.

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