England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		15/12/2010

Mr Justice Tugendhat :

1. This is an appeal brought by the leave of the Master from the decision he made on 20 October 2010, by which he gave permission to the Claimants to amend their Particulars of Claim for the second time. There are two actions, HQ09X02331 issued on 27 July 2009 and HQ10X01362 issued on 9 April 2010. The actions arise out of the same events, and the claim forms and statements of case contain much that is common between them. The Master's Order was made in both actions. On the morning of 26 November I stated that I would dismiss the appeal and give my reasons later, as I now do.
2. The First Defendant (now the only Defendant) is a company incorporated in England and Wales. Its management had moved to Hong Kong, before these proceedings were commenced as referred to below. According to its Defence it is and was at all material times the parent of a group of companies that owned title to mining concessions and were involved in exploration for base and precious metals in Peru. There is no issue of jurisdiction in this case. Article 2 of the Judgments Regulation provides that this claim can be brought here against the Defendant because it has its registered office, and therefore its domicile, in this jurisdiction.
3. The Claimants are 33 individuals. In each of the two Claim Forms they give brief details of their claim as follows:

"The Claimants seek damages (including exemplary damages and/or aggravated damages)… for physical and psychological injuries and consequential losses … suffered at or in the vicinity of the Rio Blanco mine, Peru operated and owned by the Second Defendant, itself and/or as agent for or under the control of, the First Defendant, resulting from the Defendants' (including servants or agents) negligence and/or conspiracy to injure, assault, batter, falsely imprison the Claimants, which conduct was also in contravention of the Peruvian Civil Code ".

4. Relevant allegations, as set out in the Particulars of Claim (as first amended), include the following. Each individual claimant sets out in detail the mistreatment which he or she (there are two female Claimants) alleges they have suffered. The Claimants characterise it as "torture, inhuman and degrading treatment and false imprisonment". The treatment included, it is alleged, beating, sexual abuse of the female claimants, shooting, in one case resulting in the death of a Mr Garcia, whose widow claims in respect of that.
5. In order to give an indication of the gravity of the conduct alleged against the police, and thus against the Defendant, I set out in the Appendix to this judgment the parts of the claim by the First Claimant which are specific to him, and the Defendant's Defence to his claim.
6. The claim against the Defendant is that the injuries pleaded arose:

"… out of its participation in their torture and other mistreatment, in particular it is alleged that:

a) [The Defendant] instigated and/or facilitated and/or directed and/or controlled the torture and other forms of mistreatment to which the Claimants were exposed; alternatively

b) [The Defendant] failed to take adequate steps to prevent or minimise the torture or mistreatment of the Claimants which occurred upon its property".

7. The project upon which the Defendant is engaged is referred to as the Rio Blanco Project. It is operated by a company incorporated in Peru, formerly called Minera Majaz, and now called Rio Blanco Copper SA. In the Particulars of Claim it is referred to as Rio Blanco, and I shall adopt that. This is the wholly owned subsidiary of a company incorporated in the Cayman Islands, which is in turn a wholly owned subsidiary of the Defendant. An issue arises as to the liability of the Defendant for acts of agents of Rio Blanco.
8. Two members of the Board of the Defendant are Mr Eager (Chief Executive Officer) and Mr Angus (Chief Operating Officer). Mr Angus was primarily based in Peru. Mr Eager and the other directors of the Defendant were resident in the UK. But Mr Angus was also the General Manager of Rio Blanco at the material time. He represented Rio Blanco in various dealings with the Peruvian Government and the Police. The site of the Rio Blanco Project is a place known as Henry's Hill Site. In 2005 the administrator of the site was an employee of Rio Blanco, a Mr Roman Tirado Villar ("Mr Tirado"). There was also a geologist at the site, a Mr Bristow, who the Defendant says was an independent contractor of Rio Blanco at the relevant time, and who the Claimants say was an agent of Rio Blanco and of the Defendant.
9. The Defendant pleads that the deposit to which the project relates is thought to be one of the largest under-developed copper resources in the world. Rio Blanco had acquired mining easements and rights in about 2002. The land is very remote in Northern Peru at an altitude of between 2200 and 2800 metres. According to the Defendant, concern over environmental issues and distrust between the local communities and the central government of Peru have contributed to an active and highly politicised anti-mining movement. The members of the protest movement for this project are referred to as the RCs. According to the Defendant the goal of the RCs is the total suspension of all mining activity in the region. This is not in dispute.
10. The Claimants allege that there has been vociferous local opposition to the exploitation of the land and the development of mining on it. Each of the Claimants, on the one hand, and the Defendant on the other, set out in their statements of case (as they stood before the contested amendment) some history of the opposition to the project.
11. According to the Claimants, in July 2005 they were part of a group of demonstrators who sought to protest against the project. The demonstration included a march to the camp. When they reached the camp on 1^st August 2005 they were subjected to rounds of tear gas fired by police officers, and then held captive. It was during the course of the following three days at the beginning of August 2005 that they were systematically mistreated. Immediately before their arrival at the site, the Defendant had sought reinforcements from the police. Employees or agents of Rio Blanco briefed the police officers who arrived at the scene as to the need to deal harshly with the Claimants. Mr Tirado in particular co-ordinated all operations on the camp and directly participated in the mistreatment of the Claimants. It is said that he was in close telecommunications contact with Mr Angus and Mr Bristow. There was no dispute that Mr Angus and Mr Bristow were in Peru at the time.
12. Prior to these events there had been significant conflicts between the authorities, who supported the project, and activists who opposed it. In April 2004 there was a protest march. Police repelled the demonstrators from the site. In the course of doing so one demonstrator was killed by a tear gas grenade which hit him directly on the head. In the original Particulars of Claim, at paragraph 23, it is averred that these events

"would have provided [the Defendant] with notice, insofar as it did not possess it beforehand, as to (1) the concern of the local communities and (2) the risks of ill-treatment of demonstrators by the police in response to demonstrations against the mining project".

13. The Defendant in its Defence sets out the history in more detail. Para 36.1 refers to the incident in April 2004 in which a protester was fatally wounded. It explains that around 1,000 members of the RCs marched for several days to reach the Henry's Hill Site with the purpose of destroying the operations at the site. The Defendant also pleads incidents at all of which it is alleged that protesters (but not the Claimants in particular) either used or threatened force against persons working for Rio Blanco, or its property. It states that these were: two incidents in July 2004, one in December 2004, one on 30 January 2005, one in February 2005 and one in March 2005.
14. In paragraph 37 to 42 of the Defence the Defendant sets out that these incidents prompted Rio Blanco to take various steps including:

"An increase in its social outreach programme with local communities… and an increase in liaison with regional and national government …".

15. It then sets out details of what it alleges Rio Blanco did to consult with and engage with local communities. It pleads that Mr Bristow and Mr Angus attended meetings in the course of that consultation. The Defendant also states that it engaged a private security company called Forza to assist with security services at the site. It also sought assistance from the Ministry of the Interior in the form of provision of police officers from two separate forces. The terms on which that assistance was provided included a requirement that Rio Blanco feed, accommodate and transport the police officers to the site, and pay a sum at a daily rate in respect of the services they rendered.
16. The primary defence of the Defendant is that, whatever the Claimants suffered in July and August 2005, it was not in any way responsible. There is no suggestion or allegation that any violence or ill-treatment was inflicted upon any Claimant by any individual employed or engaged by Rio Blanco, or by the Defendant. The allegations are against individual, but unidentified, police officers. If that defence succeeds, then the details of what the Claimants say they suffered do not concern the Defendant. The determination of this issue is likely to involve resolution of disputed facts about the actions of the named individuals, and upon questions of law relating to the responsibility of a company for acts done by individuals alleged to be the officers or agents of itself or its subsidiary, and upon questions of company law, both English and Peruvian.
17. But as an alternative, the Defendant advances a positive case, in para 7.1 of the Defence, that "at all material times its officers and employees acted lawfully and appropriately, reasonably and responsibly". It also raises a number of specific defences under Peruvian law. The first of these is "legitimate defence and necessity". That appeared to correspond broadly to the English law defences of self defence (including the defence of others and of property) and the defence of necessity. There is also a defence of limitation, both under Peruvian law and English law. The claim was brought more than two years (Peruvian law) and more than three years (English law) after the injuries were allegedly suffered.
18. For present purposes it is common ground that I must assume that the Claimants suffered the injuries and ill-treatment which they allege they suffered at the hands of the Peruvian police officers. I stress that this is not admitted, nor am I finding this as a fact. It is only an assumption. It is only if the Claimants prove that much that the court will have to decide upon the defences that are raised.
19. In the Particulars of Claim in their original form there are serious allegations against Mr Tirado. In paragraph 27 it is alleged that at the end of July 2005 he briefed the police who arrived at the site. It is common ground that he did brief them. What is not common ground is the Claimants' allegation that he informed the police as to their tasks, and in particular stated that the march was made up of terrorists who were to carry out acts of aggression, and that they had to defend their lives as well as the camp. It is said that Mr Tirado gave this briefing with a Mr Rojas of Forza, who stated to the police that they should take hostages and get information from them about who was behind the demonstration. It is said that Mr Angus and Mr Bristow were conveying instructions to Mr Tirado and that these instructions included an order not to speak to the protesters but rather to attack them, beat them and destroy them.
20. Paragraphs 54 to 107 of the Defence are under the general heading "The events of July and August 2005". They set out facts which, if proved, would lay the foundation for a defence that, if and insofar as the Defendant may be legally liable for the actions of the police, then the police acted reasonably and proportionately for the preservation of the lives of themselves and others (including the protesters) and for the protection for the property of Rio Blanco and in general for the maintenance of public order.
21. These paragraphs include an account of meetings, in the days leading up to 1 August, between Mr Angus and Mr Bristow, on the one hand, and on the other hand Ministers at the Ministry of the Interior, and with other persons and bodies who might be able to assist in establishing channels of communication with the protesters. It is at this point that it is pleaded that Mr Tirado briefed the police, providing them with basic information about the camp such as mealtimes and details of the camp facilities, and "relayed such information on the protesters as he had heard from various sources". It is pleaded that he did not purport to give the police any tactical or other orders. A similar plea is made in respect of Mr Rojas's briefing. It is said that the only practical assistance that Rio Blanco provided to the police officers on site was limited to accommodation, food and transport.
22. One of the matters relied on as justifying the actions of the police in using the force they did in detaining the Claimants was that a police officer, Captain Rebollar, was struck on the head by a protester, knocked to the ground, had his gun removed and was shot in the leg. He was then held hostage for about an hour before being rescued by other police officers. It is said that six of his abductors were arrested in connection with the unlawful kidnap and shooting of Captain Rebollar. It is not specifically alleged that any of the Claimants were among that number, but it is said that it was at this point that Claimants 5, 17, 25 and 28 and the husband of Claimant 22 say that they were shot by the police. It is said that the role of Mr Tirado in the detention of the detainees (which included 23 of the Claimants) was that he identified for the police a place, namely a platform, which the Defendant says was the only available place where the detainees might be accommodated, but which the Claimants allege was most unsuitable as a place of detention.
23. The Defendant states that it is unable to aver when or where Mr Garcia died. However, it is accepted that at 3pm on 1 August 2005 Mr Tirado received a message from a police commander to the effect that the police had found a man who had been shot and needed to be air-lifted off the site. Mr Angus learnt of the death of a protestor on that day, after he had travelled up from Lima with a view to attending meetings to try to find a way to defuse the situation.
24. There is one paragraph in this section, paragraph 64, which relates to events which are said to be ones in which the Claimants were involved. The date is not made clear. The paragraph reads:

"Several of the locally based evacuees were kidnapped by community members after they had left the site. These employees of [Rio Blanco] were apparently regarded as traitors to their communities, were beaten and held hostage for a number of days".

25. Paragraph 108, which has five sub paragraphs, pleads events subsequent to the date on which the Claimants allege they suffered the injuries in respect of which they make this claim.
26. It is said that an investigation into the shooting of Mr Garcia found that the police officer responsible for shooting him, who is identified, committed "involuntary manslaughter". The rest of the paragraph refers to the proceedings of the Piura Prosecutor against a number of the Claimants (who are not identified) in connection with the injuries sustained by Captain Rebollar.
27. There is also pleaded complaints by two Peruvian non-governmental organisations, which had filed a criminal complaint against the police, Forza, employees of Rio Blanco, the Piura Prosecutor himself, and the doctor attached to the Prosecutor's office who conducted medical examinations of the protestors who had been arrested. The complaint was of an omission to prosecute and the issue of a false medical certificate. Those complaints were made in June 2008. It is pleaded that on 9 March 2009 they were dismissed "except insofar as it related to a number of police officers". It is said there was an appeal which on 28 October 2009 was found to be partially well founded. An investigation is still ongoing.
28. In paragraph 67 of the Particulars of Claim as originally formulated, it is pleaded that the Defendant made an admission of unlawful participation in the matters complained of. It is common ground that on 11 September 2006 Rio Blanco issued a document (referred to by the Claimants as "the apology") as follows:

"Rio Blanco … wishes to express the following:

1) Minera Majaz SA is currently undergoing a sincere period of change and substantial improvement in its attitude towards engagement and dialogue with all those who are located in the area of influence of the Rio Blanco Project.

2) … it wishes to express its public censure and its most deeply felt apologies for attitudes and conflicts that in the past have occurred between certain of its staff and workers and some families and organisations and community leaders of the provinces of Huancabamba and Ayabaca.

3) The people associated with these conflicts have been seriously reprimanded and permanently separated from our company, as an expression of the desire among the Directors of Minera Majaz that such attitudes are never again repeated in the future…

4) As an expression of our good will from here on Minera Majaz SA will initiate no more legal proceedings; this will be the role solely of the public prosecutor". There is also pleaded a statement made in November 2007 and another on 16 January 2009 ... as to which there is an issue as to the translation from the Spanish).

29. In para 226 of the Defence the Defendant pleads to the document issued on 11 September 2006. It denies that that is an admission of liability in respect of the events in question.
30. The Reply, as it stood before the proposed amendments, dealt first with matters of limitation and applicable law. It is averred that the article of the Peruvian Civil Code which corresponds broadly with the English concept of self defence cannot avail the Defendant in respect of the deliberate, excessive and cruel mis-treatment of the Claimants which is said to be grave enough to amount to torture and to engage issues of public policy.
31. There appears to be some force in this point. But as I understand it, such a defence would be advanced only in respect of some of the injuries allegedly suffered before claimants were detained, and for the fact that they were detained. If any claimant was to prove those of his allegations which are characterised as torture, then it is hard to see how there could be such a defence to that.
32. Next it is said, in paragraph 22, that the Defendant was responsible for instigating the actions of the police and others for whose acts it claims not to be responsible.
33. The facts are pleaded so as to found a case under the Foreign Limitation Period Act 1984 that the application of a time bar to the present claims would be contrary to public policy and cause undue hardship. The Claimants are vulnerable and poor and live in an area so remote that they had no access to legal advice. Some of them suffered psychiatric injuries. There would be no prejudice to the Defendant. In particular those representing the Claimants have come in to possession of photographs of the Claimants and others showing their injuries and other evidence of their mistreatment while in detention.
34. Para 62 of the Particulars of Claim included a plea of conspiracy to cause injury to the Claimants and/or a conspiracy to injure by unlawful means. In paragraph 203 of the Defence it is pleaded that this claim lacks the necessary particularity. But there has been no application to strike it out, nor for summary judgment. Some additional material is pleaded in the Reply in response to para 203 of the defence. No application has been made to strike that out.

THE CONTESTED AMENDMENTS

35. It is against this background that I turn to summarise the amendments for which the Master gave leave. The amendments are both to the Reply and to the Particulars of Claim.
36. The amendments to the Reply incorporate the amendments to the Particulars of Claim. The amendments to the Reply start with the words "at paragraph 37-42… of the Defence…". Thus they are pleaded specifically as a response to the affirmative Defence, by which the Defendant claims to have increased its social outreach programme with local communities and increased liaison with the national and regional government.
37. In the amendment it is admitted that there was such a programme and it was averred that it was the responsibility of Mr Angus. It is said that public statements made by the Defendant about the environmental impact of the project were incomplete and misleading, the programme was aimed at disseminating propaganda in an attempt to reduce local opposition to the mine, that the Defendant and Rio Blanco employed a strategy of violence and intimidation towards protesters (and it is at this point that there is incorporated the amendment to the Particulars of Claim), that the Defendants knowingly and falsely stated that the environmental protest movement was made up of terrorists or agents of drugs cartels, that the programme had an ulterior purpose, namely a means of covertly obtaining information about local opposition and in summary that far from engaging in a positive dialogue with local communities the Defendant and Rio Blanco employed various deceitful, covert and manipulative methods to overcome local opposition to the mine.
38. The amendments to the Particulars of Claim which are incorporated into the Reply are under the general heading "Events demonstrating the strategy/course of conduct on the part of [the Defendant] of which its reaction to the demonstration in July 2005 formed part".
39. There are five main paragraphs numbered 52A to 52E. 52A has 12 sub paragraphs numbered in Roman small numerals. These are introduced by the following words:

"Other facts and events occurring in 2004-2006 are relied upon as (1) similar fact evidence in support of the Claimants' contention that the mistreatment of them in July 2005 was ordered and orchestrated by [the Defendant] and (2) showing that the actions of the officers of [the Defendant] in July 2005 were part of a strategy of intimidation and violence directed against individuals in the community who are opposed to the mine, including the use of police officers paid by [the Rio Blanco] in such activities:…".

40. Para 52A(i) and (ii) contain further allegations as to briefings by Mr Tirado said to have occurred "from 2004", and held weekly with the camp employees. It is said that he referred to the mine opponents as drug dealers, terrorists and communists, incited employees to commit acts of physical aggression against them, and stated that the killing of leaders of the group opposed to the mine would be rewarded by Rio Blanco. It is pleaded that he also briefed Forza guards and police personnel on rotation at the camp to the effect that they should shoot protesters on sight.
41. Para 52A(iii) includes material in relation to events in April 2004. Events in April 2004 are already pleaded at paragraph 22, and this pleading adds to what is already there. The additional material reads:

"In early 2004 local community members called for a protest march against the proposed mine to be held in April 2004. In advance of the planned demonstration employees of Rio Blanco including Mr Tirado planned that the protesters would be invited to a location closer to the mine on the pretence of a meeting to discuss their concerns. It was planned that the police personnel would be flown in by helicopter and would open fire using tear gas and live ammunition".

42. Para 52A(iv) and (v) relate to events on 21 and 22 April 2004. It is pleaded that a Vice President of the Defendant, a Mr Heyl, invited a delegation of protesters to a meeting the following day to discuss the environmental impact and community benefits of the mine. When they arrived they were told to wait for the arrival of a government commission which would address their concerns. But helicopters ferried police to the camp and when the protesters proposed to march to the camp offices to meet the delegation, without provocation but pursuant to the plan explained by Mr Tirado, the police opened fire on the protesters using teargas and live ammunition.
43. Para 52A(vi) simply pleads that

"after April 2004 [Mr Tirado] supervised rifle shooting practices undertaken by all Rio Blanco employees at the camp using a human figure as a target".

44. The following sub-paragraphs numbered (vii) to (ix) relate to events in January to March 2006, that is after the date on which the Claimants claim to have been assaulted and detained.
45. Para 52A(vii) relates to an incident at which it is said that police officers attempted to bribe a local mayor to sign a document accepting the presence of the mine, and, when he refused to do so, they threatened him with firearms claiming that they were acting "on behalf of Ray Angus".
46. In para 52A(viii) it is pleaded that between January and April 2006 the Defendant attempted to establish development projects in the local community, but there was opposition to these projects, and that Rio Blanco paid, housed and transported police officers for use at the demonstrations at which the opposition was expressed. It is said that on several occasions the police officers used tear gas and shot live rounds in the air in the direction of protesters and on at least one occasion an employee of Rio Blanco dressed as a policeman acted with them.
47. Para 52A(ix) and (x) plead events in March and April 2006. Two of these are said to have been led by a Mr Urbina, who was the Community Relations Manager of Rio Blanco. It is said he organised and directed an assault on participants of an environmental meeting, leaving several people injured, and that he led about 100 individuals to meet local residents, where he provoked a clash. The result of this was that a number of members of the local community were injured by the employees of Rio Blanco. The third incident is said to be similar, but Mr Urbina is not identified as having participated. It is said that 80 people armed with sticks and stones were sent by Rio Blanco to attack villagers in a hamlet near the mine.
48. Para 52 A(xii) reads:

"The above incidents were all orchestrated encouraged and approved by the Defendant and were promoted by Rio Blanco employees under the command of Ray Angus with the intention of provoking incidents that would intimidate those who oppose the mine and justify bringing police forces to the area, which would enable Rio Blanco to establish a presence on community land. These incidents were the subject of a public apology made by Rio Blanco in September 2006 made to the local communities".

49. The "public apology" is the document already pleaded, dated 11 September 2006 (see above).
50. Paragraphs 52B, 52C and 52E are related to the matters pleaded in paragraph 5A of the Reply, which was in turn pleaded in response to paragraphs 37 to 42 of the Defence, as noted above.
51. It is said that as part of its strategy of intimidation and violence against persons opposed to the mine, the Defendant or Rio Blanco maintained a network of informal agents in order to obtain intelligence, covertly monitored pro-protester radio stations, gathered intelligence on non-governmental organisations regarded as sympathetic to the opponents of the Project and targeted the funding sources of such non-governmental organisations. It is said that the community relations programme was "a sham", that public statements about the environmental impact of the mine were misleading, and that the Defendant and Rio Blanco had no genuine concern for the local community, their interests or views.
52. Paragraph 52D alleges:

"A motive for the aggressive, violent and unlawful strategy adopted by the Defendant towards persons opposed to the mine was that the Defendant knew that the mine would have a very significant adverse environmental impact (including that it would require the diversion of [three rivers]). It is to be inferred that [the Defendant/] Rio Blanco considered that (i) environmental protesters could not be assuaged; and/or that (ii) the existence of environmental protests would draw attention to and raise concerns about the environmental impact of the mine. [The Defendant] or Rio Blanco accordingly established a strategy of violence, defamation and intimidation towards environmental protesters."

THE DECISION OF THE MASTER

53. The background against which the Master made the Order requires a brief summary. He has been case managing the proceedings since December 2009. There have been three case management conferences before him: 16 December 2009, 28-29 May 2010 and 20 October 2010. The last of these is the one at which he made the decision which is the subject of this appeal. He therefore came to the case with the advantage of detailed knowledge of it.
54. In addition there is a judgment of Gloster J dated 16 October 2009. She had heard oral submissions on 8 and 9 July 2009 and had received further written submissions on 24 and 27 July. Her judgment was in relation to the Claimants' application for the continuation of a worldwide freezing injunction and other injunctions ordered by Burton J on 2 June 2009, and continued by Irwin J on 16 June 2009, and for an order for disclosure in accordance with those orders against the Defendant. She set out the corporate structure in more detail than I have done in this judgment. I gratefully refer to what she said.
55. As Gloster J explained in para 4 of her judgment, on 27 April 2007 the share capital of the Defendant was sold to a Chinese conglomerate which was formed in 2006 for the purpose of making an offer for the share capital of the Defendant. As a consequence of that transfer of ownership, while the Defendant remains a company registered in England and Wales, its management has been transferred to Hong Kong. It was against that background that the freezing injunction was sought.
56. Gloster J had to consider the following issues: whether there had been non-disclosure; whether the Claimants had a good arguable case; whether there was a risk of dissipation; matters going to her discretion, and the amount to be frozen. In connection with the amount to be frozen, she had to consider the claims for damages and costs. Since the Claimants' legal costs are being funded with the benefit of an ATE insurance policy, she had to consider the premium for that. She therefore had to, and did, give a very detailed judgment. Of course, matters, and the pleadings, have moved on very considerably since that date. But her judgment remains of great assistance on the matters the Master had to decide.
57. In Paragraphs 26 and 27 Gloster J set out her conclusion that the Claimants had established a sufficient case to support a world wide freezing injunction. She reached that conclusion stating that she had reviewed the evidence in its entirety and had regard to undoubted potential weaknesses.
58. As to discretion, she heard arguments that the proceedings were brought as part of an orchestrated and continuing political environmental campaign, that the events had taken place four years ago (as it was at that time), that they had been investigated in Peru, that they were statute barred in both England and Peru and other matters. Gloster J was satisfied that she ought to exercise her discretion in favour of the Claimants.
59. As to quantum, evidence for the Claimants supported an application for an order in the sum of £7.2 million. This was made up of £2 million in respect of damages, £4.275 million in respect of the Claimants' estimated costs. These were in relation to both solicitors and counsel, who are acting on a "no win no fee" basis, with an uplift or success fee of 100%. Finally she said:

"£1.13 million ATE ("after the event") insurance premium to insure the Claimants against liability in respect of the Defendant's Costs in circumstances where [the Defendant] has now expressly agreed to limit recovery of its costs to £1.25 million".

60. Before me it was explained that the agreement by the Defendant to limit its costs to £1.25 million reflected a concern that, if they did not do so, the ATE insurance premium would be higher, with the result that a larger sum would be frozen.
61. As to the amount of damages, Gloster J considered that she should not include any figure for aggravated or exemplary damages. She noted that the Claimants' total claim for general damages was between £775,000 and £1.395 million. In the fifth affidavit of Mr Meeran, the solicitor for the Claimants, there was a more detailed breakdown of the estimated amount of the individual Claimants respective claims, amounting to a total of some £2 million. This included aggravated damages claimed by 26 Claimants at the rate of £25,000 per claimant. Gloster J adopted a figure of £1.6 million for the purposes of the claim for the injunction.
62. After taking all these matters into consideration she decided that the amount of the freezing injunction should be £5.015 million.
63. On 20 October 2010 the Master had the benefit of submissions from the same counsel who appeared before me.
64. After allowing amendments as to Peruvian law, which are not now contentious, he said this on the matters with which I am concerned:

"3. So far as the amendments relating to the matters which the claimants wish to rely upon as showing that the Defendant had over a period of time conducted itself in a way that supports the suggestion that it was responsible vicariously for the activities of the police and the security officers, it is quite clear to me that what I have to do is to conduct a two-fold test.

4. The first limb of that test is to decide whether the matters which are the subject of the proposed amendment are matters which are potentially probative of an issue in this case. It seems to me that they undoubtedly are probative in that, if the claimants can establish that the defendant had a course of conduct over the years which may well have resulted in it instructing or at least condoning the activities which are complained of on the part of the police, that must be probative.

5. The second and much more difficult issue is, having found the matters are probative, to balance that against the potential unjustness to the defendant if the trial is extended to cover the various matters which are the subject of the proposed amended pleading. That is a nicely balanced argument, but at the end of the day I conclude, assuming that additional costs would not balloon out of all proportion to the rest of the costs in the case, that the most important factor in my judgment is that the claimant should have the opportunity of putting forward their own case.

6. It has been submitted that that can be done without disclosure. That would be a very unsatisfactory state of affairs and I am not prepared to say that the claimants are bound to be able to persuade the trial judge that they can rely on these matters if they have not been pleaded. If they are pleaded, of course there is the obligation of disclosure.

7. I am conscious of the fact that there is the possibility that this trial may become unbalanced and that the court will have to consider matters which go beyond the days which are relied upon for this principle incident. If this was a case involving a jury I would think that that would be quite determinative of the matter, but it is not, of course. It is a matter for a judge alone. I am entirely satisfied that a trial judge will be able to control proceedings in such a way that they do not become unbalanced and will be able to take into account the suggestions the Defendant had previous conduct consistent with the allegation that it was complicit in the events of the incident which is the subject of the complaint.

8. For all those reasons I propose to permit the amendments in the document put before me. I also propose to give Mr Gibson and the Claimants permission to appeal".

65. He then adjourned the balance of the Case Management Conference to a judge with a time estimate of two days. Those were the two days during which I heard the appeal. He also ordered that the permission given to the Claimants to amend be on "the usual terms as to costs". That is the subject of a separate appeal on the part of the Claimants. I have not yet considered that matter.

THE GROUNDS OF APPEAL

66. The grounds of appeal are extensive. In addition there is an application under CPR r 52.11(2)(b) to adduce evidence which was not before the Master, namely a second witness statement of Mr Isted dated 4 November 2010. The Master had had the benefit of Mr Isted's first witness statement which was dated 18 October 2010. That deals with the case as a whole, and in particular three issues, namely the application to amend the Claimants' pleadings, the Claimants' application for specific disclosure and for case management directions.
67. The part of the witness statement addressing the application for permission to amend covers pages 5 to 12. Mr Isted sets out matters which he states go to the question of prejudice to the Defendant if the application is allowed. He refers to the practical difficulties of obtaining evidence in relation to some of the matters introduced by way of amendment and complains of the lack of particularity. He states that the time and expense involved in the investigations would place an enormous burden on the Defendant. The Defendant had by this time pleaded its case and carried out much, if not all, of what it accepts were its obligations in relation to disclosure. These matters would have to be reopened. He accepts that in a letter dated 10 September 2010 the Claimants had indicated that they might wish to amend their case, and that on 13 October 2010 the draft of the amendments had been provided. He anticipated that allowing the amendments would delay the litigation by several months and cost in excess of £150,000. He broke this figure down in paragraphs 136 and 137 of his witness statement. He refers to the fact that in the light of the cap on the Defendant's costs at £1.25 million, it would mean that the additional costs were not recoverable if the Defendant succeeded.
68. Each of the parties submitted lengthy skeleton arguments to the Master dated respectively 18 and 19 October 2010.
69. It is clear from the terms of his judgment that the Master had in the forefront of his mind the decision of the House of Lords in O'Brien v. Chief Constable of South Wales Police [2005] UKHL 26; [2005] 2 AC 534. The law is conveniently set out by Lord Bingham in paragraphs 2 to 6 of his opinion, and is very briefly summarised by the Master.
70. It is said that the Master failed properly to apply the test in O'Brien. He considered the amendments on a global basis, rather than considering each amendment individually, or at least each category of amendment separately. He failed to distinguish events pre dating the index events from those post dating it. He failed to consider that some or all of the new allegations were either irrelevant and/or insufficiently particularised. He was wrong to assume that the additional costs caused by the amendments would not balloon out of all proportion to the rest of the costs of the case. He failed to have sufficient regard to factors identified by the Defendant, namely the creation of side issues, the burden of the Defendant in re-pleading its case, re-interviewing its witnesses, and restarting its disclosure. He failed to have regard to the likely loss of the trial date (at the moment fixed for June 2011), the likely increase of the length of the trial, and the increase in costs for which the Defendant would not be compensated because of its agreed cap on recoverable costs. It is said he further failed to have regard to the tests, which are separate from the O'Brien tests, for permitting a party to amend its statement of case under CPR 17.1. He should have found that the proposed amendments were not necessary to ensure that the real dispute between the parties should have been adjudicated upon. The Defendant cannot be compensated in costs, the proposed amendments will have an adverse effect on the administration of justice and the proposed amendments could and should have been made earlier.
71. For the Defendant it is submitted it would be in the interest of justice to hold a re-hearing and not limit the appeal to the usual review in accordance with CPR 52.11.
72. In his second witness statement (which the Claimants object to my admitting) Mr Isted revises his estimate of the costs which he says would be consequential upon allowing the amendment, to a figure in the region of £500,000. This is broken down by reference to the different tasks, namely investigation, researching documents and taking further witness statements. It is not broken down by reference to different issues raised in the different paragraphs.
73. For the Defendant it is submitted that events after August 2005 have insufficient probative value, and lack sufficient similarity to amount to similar fact evidence in any event. As to paragraphs 52B to 52 E, it is submitted that none of these allegations are probative of any issue in the Claimant's claim. The Defendant recognises that the Claimant had sought to justify this section of the amendment by reference to the Defendant's pleaded case in paragraphs 37 to 42 of its defence. The Defendant submits that it pleaded these matters by way of background only, and it is concerned that the Claimants are using this part of the Defence as a platform on which to pursue the political campaign which, in 2005 and thereabouts, they had been pursuing by their protest marches. They are seeking to turn this trial into a public inquiry and to use it to get disclosure in relation to the environmental impact of the mine. These submissions were enlarged upon in great detail both in writing and orally.
74. For the Claimants it is said that the material now sought to be introduced is based on evidence which came to light over the summer. Thus it has been pleaded at the earliest possible opportunity.
75. For the Claimants it is submitted that although the amendments have been referred to by way of shorthand as "similar fact" amendments, the relevance of them is three fold. First they directly rebut the Defendant's own positive case, including in particular its contention that it had a responsible strategy of positive and open engagement with the local community (referred to in the Defence paras 37 to 42). Secondly it is said that the incidents of 2004, 2005, and 2006 fall squarely within the "evidence of what happened on [other] occasions" as referred to in paragraph 4 of O'Brien. Thirdly the amendments plead a strategy or system of conduct which is apt to rebut a defence of coincidence, as explained in Thorpe v Chief Constable of Manchester [1989] 2All 827 at 674 B-C.
76. As to the impact on disclosure, the Claimants do not accept that the additional disclosure of which the Defendant complains is attributable to the amendments. There are already pleaded a number of events in 2004 and in particular the apology in September 2006. Further, the matters pleaded in the Defence in relation to the outreach programme also gave rise to the disclosure obligation.
77. The Claimants remind me of the fact that this is a case management decision by the Master who was very familiar with the case. The authorities emphasise the need for appellate courts not to interfere unless satisfied that the decision is so plainly wrong that it must be regarded as outside the generous ambit of the discretion entrusted to the judge: G v G [1985] 1 WLR 647 and 652. A rehearing is an exception to the rule and should not be embarked upon unless some injustice has occurred, which cannot be cured otherwise: Ealing v Richardson [2005] EWCA Civ 1968 para 20. Mr Hermer enlarged upon these and other submissions both in writing and orally.

DISCUSSION

78. The CPR set out what is to be contained in a statement of case. Particulars of Claim must include a concise statement of the facts on which the claimant relies, and if the claimant is seeking aggravated damages (as is the case here) a statement to that effect and the grounds for claiming them. The notes in the White Book to CPR 16.4 state that the claimant should state all the facts necessary for the purpose of formulating a complete cause of action. The Practice Direction, in particular para 8.2, provides that the claimant must specifically set out other matters where he wishes to rely on them in support of his claim, including the fact of any illegality, notice or knowledge of a fact and related matters. CPR 16.5 provides that where a defendant denies an allegation he must state his reasons for doing so and if he intends to put forward a different version of events from that given by the claimant he must state his own version.
79. The rules do not make provision for pleading what the Defendant refers to as "background". Statements of case are for the stating of facts, not evidence. Relevant facts may include context, or the factual background, in some cases. But the pleading of facts not material to a cause of action or a defence is capable of leading to an unwarranted extension of what appear to be issues in the action, but are or ought not to be issues in the action.
80. It is plain from the way that the amendment to the Reply specifically refers to paragraphs 37 to 42 of the Defence that the introduction into the Defence by those paragraphs of the outreach programme of the Defendant and related matters put the Claimants in a difficult position: it was unclear whether they should plead to them or not. The Claimants might have applied to strike out those paragraphs as irrelevant. They chose instead to plead to them. Before I stated on the morning of Friday 26 November that I was allowing the appeal, the Defendant did not indicate any willingness to abandon those paragraphs. These paragraphs seem to me to be the root of the major issue between the parties. If the contents of those paragraphs are material, then it would not be fair to the Claimants that the Defendant should be permitted to rely on them without having to give disclosure, or to face a contrary case which the Claimants wish to advance. If they are not relevant, they should not be there.
81. In fact it seemed to me that the Claimants were entirely content that paragraphs 37 to 42 should remain in the Defence. There may be some force in the submission for the Defendant that the reason for this is that it gives them a platform upon which to advance their environmental campaign.
82. The Master did not refer specifically to this point, nor did he refer to a number of the other points which were raised before him and before me. But I do not think he overlooked them. He had the benefit of having managed this case previously and the benefit of submissions from counsel which I have no doubt were made as clearly to him as they were to me. He could see the difficulties in the case and that is why he gave permission to appeal and directed that the remains of the case management conference be heard before a judge.
83. The matters introduced by paragraph 52A of the Particulars of Claim are in a different position from those introduced by paras 52B to 52E. The Master was plainly entitled to find that they fall within the O'Brien test. There are undoubtedly points as to particularity which can be, and have been, made for the Defendant. In the course of submissions I expressed my concern about some of these. Mr Hermer responds that he has instructions which enable him to address the matters about which I indicated I had a concern.
84. I saw little force in the submission that the Master failed to distinguish events pre dating the index events from those post dating it. Events can be probative, as showing propensity or probability, whether they pre date or post date the event that is in question. So too with the submission that the Master failed to have regard to the tests, which are separate from the O'Brien tests, for permitting a party to amend its statement of case under CPR 17.1. Mr Hermer submitted that the second limb of the test in O'Brien for practical purposes covers much of what the Master was required to consider.
85. There are also difficulties with the Defendant's argument that the matters pleaded in para 52A will increase the scope of disclosure and witness statements and costs. As already noted, events in the period 2004 up to the apology in 2006 are already pleaded. There is force in the Claimant's submission that these matters may already have been subject to disclosure. I make no decision on the point, but the Defendant's submission is one that the Master was entitled to reject.
86. By way of example of my concerns, during submissions I referred in particular to sub-paragraphs (vi) and (viii) of para 52A. The first point is that they lack particularity. But rather than refuse leave to amend to include these sub-paragraphs for such defects, it was open to the Master to take the view that he should give permission, and leave the Claimants the opportunity to make good the omissions, whether by the witness statements, which Mr Hermer says they already have, or by further information. If the Claimants cannot do this, then consideration can be given to striking them out at a later stage, nearer the trial.
87. There is a more fundamental point that concerns me. It is one of proportionality, and it applies also to the amendments to the Reply. But again in my judgment the Master was entitled to grant leave, and to leave this to be resolved later. It would have been difficult for him to resolve it without dealing at the same time with paras 37-42 of the Defence, and there was no application before him relating to those paragraphs.
88. Although, having regard to the way matters were argued before him, the Master was, in my judgment, fully entitled to reach the conclusion that he did, that is not the end of the matter.

FURTHER CONSIDERATIONS

89. It must not be forgotten what this action is really about. The Claimants are claiming damages for injuries inflicted before, and during their detention, which they say are the result of treatment so severe as to amount to torture.
90. On the face of it there is nothing unlawful or sinister for a manager and other employees of a mine in the high Andes to practise rifle-shooting using a human figure as a target. And the allegation that on several occasions the police officers used tear gas and shot live rounds in the air in the direction of protesters between January and April 2006 does not advance matters either. Before it could be said that such conduct was, or might have been, unlawful, consideration has to be given to the circumstances, including in particular the activities of the demonstrators and the danger, if any, in which the police officers might reasonably have seen themselves as being. But even if it is proved that that conduct was unlawful, it then has to be asked whether such conduct would be of any probative value to a court considering whether it is proved that Claimants suffered the extreme treatment which they allege, and which I set out in the Appendix to this judgment.
91. Similarly, the matters in paras 37 to 42 of the Defence, and the Claimants' response, have to be considered in the light of the allegations made against the police officers, for which it is said that the Defendant is liable.
92. I have serious doubts whether paras 37 to 42 of the Defence have any significant probative value in that context. Expressed in terms of English law, this claim is one for trespass to the person and false imprisonment. Claims against the police for such torts are tried regularly in English courts. Happily the degree of force alleged is, so far as my experience goes, never on the scale of severity alleged in this case. But that makes no difference to the point I have in mind. The point I have in mind is that, faced with such a claim, the police officer concerned, and any superior alleged to be vicariously or personally liable for his acts, do not plead by way of defence all the things that they do in promoting good relations with the community from which the claimant happens to come. The issue is: did the police officer in question use excessive force, or detain the claimant when he had no lawful right to do so? What was the involvement of the superior alleged to be vicariously or personally liable? The fact that on other occasions he might have an exemplary record in fostering good relations with the community is likely to be relevant, if at all, as going to credit. Matters going to credit are not pleaded, are not the subject of disclosure, and cannot be challenged by an affirmative case from the opposing party. There has to be a limit on what the court can inquire into. It would be for the trial judge to decide whether or not to admit these matters as going to credit.
93. If, notwithstanding the foregoing, paras 37 to 42 of the Defence do have some value probative of the Defendant's case, and if, as the Master held, the Claimants are entitled to respond by amending the Reply and the Particulars of Claim as they have, then consideration has to be given to whether the exploration of all these matters, by disclosure, witness statements and trial is likely to yield something of sufficient probative value to justify the cost and time involved. My present view is that that is most unlikely.
94. For the Claimants it is pleaded that para 52D supplies a motive. I question that. First, there is little need to plead a motive: it is obvious, and is set out in the Defence (see para 9 above). Secondly, in order to establish the alleged motive, the Claimants have to prove that the project would require the diversion of three rivers. That is not admitted, and would require an investigation into the project which would be disproportionate to the issue.
95. After informing the parties that I had decided to dismiss the appeal, I also invited them to consider whether the case should nevertheless go forward with all these matters. I indicated that if neither party made an application, I would consider using my case management powers of my own motion. I referred to the concerns that I had expressed during submissions about paragraphs 37-42 of the Defence and the amendment to the Reply and paragraphs 52B to 52E of the Particulars of Claim.
96. CPR1.1 provides as follows:

"(1) These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly.

(2) Dealing with a case justly includes, so far as is practicable –

(a) ensuring that the parties are on an equal footing;

(b) saving expense;

(c) dealing with the case in ways which are proportionate –

(i) to the amount of money involved;

(ii) to the importance of the case;

(iii) to the complexity of the issues; and

(iv) to the financial position of each party;

(d) ensuring that it is dealt with expeditiously and fairly; and

(e) allotting to it an appropriate share of the court's resources, while taking into account the need to allot resources to other cases."

97. CPR 3.1, headed "The Court's General Powers of Management", provides that the court may exclude an issue from consideration or take any other step or make any other order for the purpose of managing the case and furthering the overriding objective (k) and (m). Thus it is no longer the role of the court simply to provide a level playing field and to adjudicate upon whatever issues the parties choose to raise before it. The court is concerned to ensure that judicial and court resources are appropriately and proportionately used in accordance with the requirements of justice. Many of the matters which can be, and in this case were, advanced for the Defendant on the second part of the test in O'Brien can be advanced in support of an application that the court exercises its case management powers. See paragraphs 5 and 6 of the opinion of Lord Bingham and paragraph 54 of the opinion of Lord Phillips, who specifically refers to CPR 1.2. As he said, CPR Rule 1.4 requires the court actively to manage the case in order to further the overriding objectives.
98. Mr Hermer has submitted that it would be unsatisfactory to pursue this matter before the parties had had the benefit of knowing the reasons for which I dismissed the appeal. After some further discussion, and following an application for an adjournment by Mr Hermer to consider the matter, I decided to adjourn the case management conference for a two hour appointment to be fixed before the end of term but after I had handed down my reasons.
99. In the circumstances I have not found it necessary to rule upon the Claimants objection to the introduction of the second witness statement of Mr Isted. The contents of that witness statement have not affected the result of the appeal in any way.
APPENDIX
100. Appendix 1 to the Particulars of Claim includes the following:

"1. On 1 August 2005 Claimant 1 was part of the group of demonstrators in the vicinity of Henry's Hill who were attacked by the police using gunshot and tear gas. Claimant 1 was identified to the police by an employee of Rio Blanco, whose certain identity he does not know. Claimant 1 believes he was identified by the said employee because he had been involved in a demonstration a year earlier.

2. Claimant 1 ran away. He hid in a small hut with Claimant 6 and another person, but was found and detained by the police.

3. Claimant 1 was detained by the police and by mine guards employed by Rio Blanco between 1 August 2005 and the early hours of 4 August 2005. The detention was arbitrary and unlawful.

4. During this period of detention Claimant 1 was subjected to torture and inhuman and degrading ill treatment by police officers whose certain identity he does not know:

(a) The police hit Claimant 1 repeatedly with their rifle butts on his back, his legs and his right buttock. Claimant 1 relies upon photographic evidence of his injuries: see Appendix 1B.

(b) The police stripped Claimant 1 to his underpants, beat him with leather batons, kicked and punched him.

(c) Police sprayed a noxious powder in claimant one's face and mouth which caused him to swallow it, produce nasal irritation and caused him to shed tears;

(d) Claimant one was blindfolded and hooded with a nylon sack, which extended from his head down to his waist. The sack was kept on his head for two days. Claimant one lost sense of time and felt like he was being asphyxiated. He felt like and believed that he was going to die. Claimant one relies upon photographic evidence of hooded detainees being held by the police: See appendix 1B.

(e) The police threw water over claimant one, then forced him to dress in a single thin layer of clothing, which immediately became wet. It was winter and claimant one became extremely cold. Claimant one was not given anymore clothes to wear until 3 August 2005.

(f) The police forced claimant one to walk down hill to the river,

(g) Claimant one was kept outdoors by the river, still blindfolded, until evening, then he was placed inside a bathroom near to the river. The police forced claimant one to sit on the concrete floor, still blindfolded, hooded and hands tied. At night, the police briefly lifted the sack and applied more powder to claimant one's face. Claimant one sat there for the following two days.

(h) Claimant one was repeatedly insulted and threatened with being disappeared. He was frightened by these threats because he knew that other people had been disappeared.

(i) Claimant one was not permitted to sleep during the nights of 1 and 2 August, and was kicked and forced to sit up whenever he tried to lie down. Claimant one was given no food or water during his first 24 hours of detention.

(j) Claimant one was forced to sit cross legged and was then pushed forward over his crossed legs and hit from behind. This was done to him three times. Claimant one was resigned to the fact that he was going to die.

(k) Claimant 1 was held for three days with his wrists tied behind his back and was only allowed to move his arms briefly, when he was allowed to eat.

5. On 3 August 2005, claimant one was transferred to a helicopter by Forza mine guards. He was flown by helicopter with other detainees to Jaen, and then transferred to Piura. In Piura, claimant one was interviewed by the police about his detention.

6. Claimant 1 was held until the early morning of 4 August 2005, when he was released…."

7. In the Defence which is specific to the claim of Claimant 1, the Defendant puts Claimant 1 to proof of his allegations. Further, the Defendant denies that any person acting for the Defendant or Rio Blanco participated in what is alleged, or provided any of the instruments by which the Claimant claims he was assaulted and injured.

101. It is common ground that Claimant 1 is a 46 year old school teacher who had been involved in various protests against the mine including one in late July and early August 2005. It is said that he was one of the protesters who was arrested following the shooting of Captain Rebollar and one of the leaders of the protesters. It is said that as a result of his involvement in these matters Claimant 1 was indeed detained, and that he is being prosecuted for various offences including those relating to the injuries suffered by Captain Rebollar, and for public order offences. This is a very basic summary of the case against him for the Defendant.