Kalma v African Minerals: English Court of Appeal Judgment Cuts Against the Grain of Common Law Cases on the Responsibility of Businesses for Overseas Human Rights Impacts

Over the last three years, the English courts have demonstrated an increasing willingness to accept jurisdiction over tort claims brought against UK multinationals in relation to human rights impacts in their overseas operations. This culminated last year in the Supreme Court’s judgment in Vedanta – heralded by some respected commentators as “the most important judicial decision in the field of business and human rights since […] Kiobel”. In practice, we have seen a corresponding shift in the attention which in-house counsel pay to human rights risks in their overseas operations and supply chains and the systems and processes which are implemented to address them. Last week, the English Court of Appeal handed down judgment in Kadie Kalma & Ors. v. African Minerals Ltd And Ors [2020] EWCA Civ 144. The judgment confirms that, legally, businesses operating in challenging environments are entitled to seek protection from state security forces. It also cuts against the grain of the recent decisions on the duty of care, demonstrating a continued reluctance by the courts to consider the relevance of international standards on business and human rights to the formation of a legal duty, resulting in uncertainty for business. This post summarises the judgment and sets out what it might mean for businesses and rights holder alike.

The facts 

African Minerals (“AML”) were the owners and operators of Tonkolili – the largest iron ore mine in Sierra Leone. In November 2010 and again in April 2012, unrest amongst the local community near Tonkolili led to what the trial judge described as “a significant overreaction from some members of the Sierra Leone Police” with members of the community being “beaten, shot, gassed, robbed, sexually assaulted, squalidly incarcerated and, in one case, killed.” During these incidents, AML made payments to the Police and provided them with logistical assistance, including the use of their vehicles and premises. Victims of the attacks brought claims against AML in the English courts on a number of common law grounds. Following a 24 day trial (7 days of which were held in Freetown) all of the claims were dismissed by the trial judge.     

The Appeal

The Claimants appealed several points relating to their case on common design and negligence. In a unanimous judgment handed down on 17 February, the Court ruled in favour of AML, dismissing every ground of appeal.

Negligence

As a general rule, English law does not impose a positive duty on a person to protect another. Accordingly, there is no duty to prevent a person from being harmed by the criminal act of a third party based purely on foreseeability. This flows from the principle that the common law does not impose liability for “pure omissions”.  There are exceptions to this rule, notably in circumstances where a defendant creates a source of danger (for example where the Police gave a gun to an officer on probation who had shown signs of instability). In AML, the Court of Appeal upheld the findings of the trial judge that no duty arose, maintaining that this was a case of pure omissions and that no relevant exception applied on the facts. It found that it was the Police, as opposed to AML, which created the danger and agreed with the judge that, without the provision of money, vehicles and accommodation to the Police, the situation might well have been worse.

As a fallback, the Claimants argued that this was a novel situation in which the court should establish a freestanding duty of care according to the three stage test in Caparo v Dickman [1990] 2 AC 605. The Court of Appeal dismissed this ground too. It held that there was insufficient proximity between the respondents and the harm, citing the imprecise geographical boundaries of the area in which possible claimants resided and the lack of a direct connection with AML. The Court also found that it would not be fair, just or reasonable to establish a duty in the circumstances. In response to the Claimants’ submissions on the relevance of international standards, most significantly the Voluntary Principles on Security and Human Rights, to the creation of a duty of care, the Court stressed the “general” nature of these standards and held (amongst other things) that:

“[…] there is nothing in the Voluntary Principles which make companies operating abroad generally liable for the unlawful acts of the police forces of the host countries in which they are operating: on the contrary, the Voluntary Principles are drafted on the basis that, whilst companies operating abroad may properly help to facilitate the law and order expected to be provided by host countries, it is the governments of those countries (and not the companies) who have “the primary responsibility to promote and protect human rights.”

As noted above, this will provide some comfort to businesses that have no alternative but to rely on state security forces over whom they have little leverage or control. However, the Court’s continued reluctance to consider international standards relating to business and human rights as relevant to a duty of care contributes to an ongoing state of policy incoherence. In a recent study carried out by Quinn Emanuel and BIICL, 79% of businesses disagreed with the statement that the existing law provides businesses with clarity about its human rights obligations. This can manifest as uncertainty amongst in-house counsel about the extent to which the responsibility to respect human rights amounts to a legal or compliance issue and concern that adopting these standards may in fact increase legal risk. Whether justified or not, this fear can have a stultifying effect on businesses’ efforts to prevent human rights harms. One way to address this is to introduce legislation clearly setting out a business’s human rights related legal obligations. Legislators should not necessarily assume that such a move would be opposed by the business community – 82% of the businesses in the QE – BIICL survey said that this could provide benefits through greater legal certainty.

Common Design

While the sections of the judgment dealing with negligence are perhaps of greatest importance to the policy debate about a legal duty relating to human rights under the common law system, the majority of the judgment concerned issues related to the doctrine of common design. These issues, and some of the court’s findings in relation to them, are also relevant to the wider policy debate.

Under English law, where a person acts with another to commit a tort in furtherance of a common design, they will be jointly liable for that tort. In AML, the claimants argued that, in light of the provision of money, vehicles and accommodation to the Police by AML, the judge should have inferred an intention by AML to quash protests, if need be, by the use of excessive violence. Although there is some authority allowing for inferred intent in the field of common design, this is restricted to cases where there was undoubtedly an unlawful purpose (for example directing someone to a particular house so that an assailant could assault the resident). The Court found that AML’s purpose was to restore law and order in their area of operations. Although it was foreseeable to AML that the Police might use excessive force to achieve this, the Court found that for the purposes of common design, foreseeability alone is insufficient to give rise to liability. Evidence of actual intention is required and, in AML, the Court upheld the finding that there was no such intention. This is to be contrasted with criminal accessory liability which requires only knowing assistance, such that selling a person a gun knowing that person will use it to kill someone else will make the seller an accessory to the murder but will not in itself make her liable in tort.

It is also worth noting the approach to the responsibility of businesses under the UN Guiding Principles (UNGPs). Under the scheme of the UNGPs, where a business identifies a risk that it might contribute to an impact (either by encouragement or facilitation) it has a forward looking responsibility to stop the activity which might contribute to an impact. Where an impact actually takes place to which the business contributed, it has a responsibility to participate in the remediation of that impact. This operates on the basis of what the business knew or should have known, that is, it applies in situations where the harm was foreseeable, irrespective of actual intent.