Lungowe v. Vendanta Resources PLC  EWHC 975 (TCC) (May 7, 2016)
England and Wales High Court (Technology and Construction Court)
More than 1,800 residents of four Zambian communities near the Nchanga copper mine brought an action in the UK against Vendanta Resources (Vendanta) and Konkola Copper Mines (KCM) for harm arising out of pollution and environmental damage caused by mining operations.
At the outset of the case, Vendanta and KCM sought a declaration that the Court does not have jurisdiction to hear the claims on forum non conveniens grounds. The Zambian community members countered that Article 4 of the recast Brussels Regulation provides a clear and unqualified right to sue a United Kingdom domiciled company in the United Kingdom.
The Court adhered to the European Court of Justice’s decision in Owusu v. Jackson, C- 281/02 (2005) (available at http://curia.europa.eu/juris/liste.jsf?language=en&num=C-281/02), which declared that English courts cannot decline jurisdiction conferred by the Brussels Regulation and there is no exception for the forum non conveniens doctrine. Para. 65.
Alternatively, Vendanta argued that the claimant’s case amounted to an abuse of EU law because the community members claims against Vendanta were a pretext to pursuing KCM in a UK court, instead of Zambia where KCM is domiciled. Paras. 73, 75. The Court noted there is a high hurdle to succeed on this defense at the interlocutory stage, noting that Vendanta would have to prove “the sole object [of the community members’ decision to name Vendanta in the case] was to oust the jurisdiction of another court, or alternatively that the basis of the joinder was fraudulent.” Para. 74.