The London High Court today gave its ruling on a complaint by 22 indigenous Peruvians concerning disclosure and alleged deletion of documents by Xstrata Tintaya S.A. (Xstrata).

This followed a court hearing on 8 July 2016. The complaint focused on the initial omission to disclose an email from an Xstrata director [Charles Sartain] to its senior South America manager [Jose Marun] which had proposed a “direct, proactive and strong approach” to confront community representatives to whom he referred as “sons of whores”.

The Judge, Mr Justice Foskett, concluded that the email was “clearly relevant and disclosable” and that it was “possible to see that the Claimants would have grounds for arguing that those subjected to [Mr Sartain’s] influence might be prepared to facilitate, connive in or otherwise encourage the unlawful acts of the PNP [Peruvian National Police] if such acts are established”.

Although the email was later disclosed, the court concluded that the original decision not to disclose was an "error" (albeit made in good faith) and that the justifications provided for non-disclosure were “troubling”.

The Claimants are seeking compensation from Xstrata for human rights violations allegedly perpetrated by the PNP during a protest in the vicinity of the Tintaya copper mine in Peru in May 2012.

Two protestors were killed and a number were severely injured and detained by the PNP during the protest.

Footage appearing to show PNP shooting protesters at close range can be seen here (see 01:15 onwards):

(Click here to view film)

At the time, the mine was owned by Xstrata Tintaya S.A. (renamed Compañía Minera Antapaccay S.A.), a subsidiary of the London-based Xstrata plc, which merged with Glencore International plc in 2013.

The Claimants allege that the PNP, whose attendance was requested by the mine, used excessive force, which Xstrata ought to have anticipated from the past poor human rights record of the PNP, including at mining-related protests.

The PNP used live ammunition and allegedly beat and kicked protesters and made protesters stand for prolonged periods in stress positions in the freezing cold and subjected them to racial abuse.

Xstrata paid the PNP and provided officers with food and accommodation. The Claimants allege that Xstrata gave the PNP logistical assistance, including equipment and vehicles, encouraged the PNP to mistreat the protesters, and that Xstrata failed to take sufficient measures to prevent human rights violations.

The allegations are strenuously denied by Xstrata, which maintains that PNP protection was necessary as thousands of protesters, many armed with traditional slingshots, were marching towards the Mine.

Xstrata claims the PNP operated independently of Xstrata and that the company cannot be held liable But the Claimants contend that documents show Xstrata controlled an intelligence-gathering network which was shared with the PNP and paid PNP intelligence officers to conduct surveillance of community members. Xstrata denies this interpretation.

They also allege there is evidence indicating that one of Xstrata’s senior local officials discussed the possibility of fabricating evidence relating to assaults that were carried out by the PNP.

As part of the UK litigation process, Xstrata is obliged to disclose documents under its control that support or hinder its case.

The Claimants complain over the adequacy of Xstrata's disclosure of internal company documents, which the Claimants argue is essential for a fair trial. At the court hearing on 8 July, the Claimants alleged that potentially relevant documents were withheld or deleted by Xstrata.

The complaint focused on the email referred to above, sent by Charles Sartain (the CEO of Xstrata’s Copper business) to Jose Marun (its Vice-President).

The email was sent on 13 April 2012, prior to the protests in May 2012. Although the email was ultimately disclosed, Xstrata's lawyers, Linklaters, confirmed that one of its senior lawyers had originally concluded that this email was not disclosable. It also emerged that Mr Marun appeared to have deleted this email from his Inbox. This led to a concern on the part of the Claimants that other relevant documents may have been withheld.

The Claimants therefore requested a court order for a random independent review of Xstrata's undisclosed documents.

Whilst rejecting the Claimants' request for a full independent review, the Judge stated: “[t]he fact that [the email] was not disclosed, and the nature of the various arguments put forward to justify non-disclosure, does give rise to the question of whether too narrow a view is being taken of the parameters [of] standard disclosure”.

The Judge invited Linklaters to propose a process for reviewing the disclosure exercise to date to ensure that “relevant and disclosable documents” had not been unjustifiably excluded.

The Judge further concluded that it was “not in issue that…certain e-mails were deleted from Mr Marun’s email account, including the email from Mr Sartain” and that Mr Marun would have to provide a satisfactory explanation for the deletions at trial, in the absence of which “the Claimants would at least have the basis for inviting the trial judge to draw an adverse inference”.

The trial is likely to take place in London in mid-2017.

  1. At a hearing in February 2016 the Judge had noted evidence of Xstrata employees describing members of the community in derogatory terms such as “ants”. The Claimants allege this indicated a hostile attitude.
  2. In recent years, the occurrence of conflicts between indigenous communities and multinational mining companies has become a significant issue in Latin America. In 2011, Leigh Day successfully settled claims on behalf of 33 Peruvian protesters who alleged that they were tortured by the Peruvian police after protesting at the Rio Blanco copper mine owned by UK company, Monterrico Metals Plc, in August 2005.