The claimants were predominantly subsistence farmers from Zambia. They claimed that Konkola Copper Mines plc, a Zambian-registered mining company, caused damage by discharging pollution into local rivers and that Konkola’s English-registered parent, Vedanta Resources plc, was negligent in not preventing this.

The High Court granted the farmers permission to serve the claim on Konkola out of the jurisdiction. Vedanta applied to the court for a declaration that it did not have jurisdiction and a stay of proceedings. Konkola also applied to the court for a declaration that it did not have jurisdiction and an order setting aside the claim form, the service of the claim form and the order giving permission to serve out of the jurisdiction.

The court refused Vendanta’s application.

Forum non conveniens. Vedanta argued that the courts of England and Wales were an inappropriate forum for the case because the relevant events and the evidence were in Zambia. The farmers argued that they had an unqualified right to sue Vedanta in the English courts under Article 4 of the recast Brussels Regulation (1215/2012/EU) and following Owusu v Jackson (C-281/02) (see box "The applicable law").

The court sympathised with Vedanta’s submission that the European Court of Justice’s reasoning in Owusu was flawed as its justification for the non-application of forum non conveniens on the grounds that it provides certainty for the defendant was wrong. To the contrary, its non-application provides certainty for the claimant because it is the defendant that wishes to rely on the doctrine to argue that the case should not be heard in its domicile. Despite this, the court held that it was bound by Owusu, and by subsequent decisions of higher authority in the English courts.

Abuse of EU law. Vedanta also argued that the claim against it was an abuse of EU law; that is, it was bound to fail on its merits and was solely intended to bring the claim against Konkola within the jurisdiction of the English courts. The court stressed that the threshold for demonstrating that proceedings are an abuse is high: Vedanta would need to demonstrate that the sole object of bringing the proceedings against it was to oust the jurisdiction of another court or that the basis for the joinder was fraud.

While it was likely that Vedanta being registered in England was one of the principal reasons it had been pursued in the proceedings, the court was not satisfied that this was the sole reason. The court found that there was a real issue to be tried and that the farmers had a right to attempt to bring themselves within the class of liability recognised in Caparo Industries plc v Dickman and Chandler v Cape ([1990] 2 AC 605; [2012] EWCA Civ 525) (see box "The applicable law"). Therefore, the court held that the claim could not be labelled a device. The court considered it relevant that Vedanta might be the real architect of the environmental damage and that Konkola might not be able to pay damages if the claims were successful.

Asserting that the entire focus of the claim was Zambia, Konkola argued that the order permitting service out of the jurisdiction should be set aside. The court dismissed the application on the basis that:

While the court said that this should not be a controversial decision as it followed established precedent, it is a judgment of considerable commercial significance. It demonstrates that the English courts remain open to submissions that a parent company owes a direct duty to persons affected by the actions of its foreign subsidiaries. It also demonstrates that unless there is fraud, or it can be demonstrated that a claim is brought against an English parent company for the sole purpose of bringing a third party within the jurisdiction of the English courts, the English courts will have little scope to decline jurisdiction.