Cape/Gencor lawsuits (re So. Africa)

In 1997, a group of five South Africans suffering from asbestos-related disease (ARD) brought suit against Cape PLC in the English High Court seeking compensation for their injuries from Cape’s asbestos mining and milling activity in South Africa.  The plaintiffs, former Cape workers and individuals living in the vicinity of Cape’s operations, alleged that Cape exposed its workers to 30 times the British legal limit of asbestos dust without adequate protective gear and that asbestos related injuries were suffered by those living near Cape’s asbestos operations.  After the claim was filed, Cape applied to stay these claims on forum non conveniens grounds, arguing that the case should be tried in South Africa.  At the beginning of 1998, Cape’s application was granted by the trial court, but the Court of Appeals later reversed the lower court’s decision.  In 1999, another 2000 claims were commenced against Cape in England for ARD based on Cape’s activity in South Africa.  Cape reapplied to stay these new claims, in addition to those filed in 1997, and Cape’s application was granted.  On appeal, the Court of Appeals affirmed the lower court’s ruling.  The plaintiffs then appealed to the UK House of Lords, and in 2000 the Law Lords held that the case should be allowed to continue in the English High Court.  The Law Lords found that South African courts would not be a viable alternative forum because legal aid in South Africa had been withdrawn for personal injury claims and no reasonable likelihood existed for the plaintiffs to acquire effective legal representation on a contingency fee basis for a case of such complexity.  After the House of Lords decision, more claimants joined the case, and by 2001 there were approximately 7500 claimants.  In 2001, Cape agreed to a £21 million out-of-court settlement with the plaintiffs, but the company encountered financial problems in August 2002 and did not meet the agreed settlement terms.  Therefore, the litigation recommenced in September 2002, and Gencor Ltd. was joined as a defendant in the case.  Gencor is a South African company which took over some of Cape’s South African asbestos operations when Cape left the country in 1979. 

In 2003, the plaintiffs, Cape and Gencor reached a settlement agreement.  There were three parts to the settlement.  First, Gencor established and now administers a £35 million trust in South Africa (the trust is to compensate ARD victims in South Africa who were not represented by Leigh Day & Co.).  Second, Cape settled with its 7500 claimants for £7.5 million.  Third, Gencor settled with the 7500 claimants for approximately £3 million.

 

- [PDF] “Cape plc: South African Mineworkers' Quest for Justice”, Richard Meeran [counsel for plaintiffs], International Journal of Occupational Environmental Health, Jul/Sep 2003

- Action for Southern Africa: “Cape Caves in on South African Asbestos Case”, 13 Mar 2003

 

- Cape PLC: Cape Annual Report 2003 [scroll to page 47, item 26(ii) for discussion of 2003 settlement]

 

- Leigh Day & Co. (plaintiffs’ counsel): South African Asbestos Victims Finally Get Their Money, 30 Jun 2003

- Thompsons Solicitors (counsel for claimants suing Gencor): Landmark Settlement Brings Justice for Thousands of SA Former Asbestos Miners, 13 Mar 2003

 

- UK House of Lords: Judgments - Schalk Willem Burger Lubbe (Suing as Administrator of the Estate of Rachel Jacoba Lubbe) and 4 Others and Cape Plc. and Related Appeals, 20 July 2000 [House of Lords decision]

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Author: Gwynne Skinner, Robert McCorquodale, Olivier De Schutter & Andie Lambe

"第三大支柱: 讓跨國公司侵犯人權行為的受害者獲得司法救濟", 2013年2月

“獲得司法救濟項目”(A2JR)設立的目的是確認並分析美國、加拿大和歐洲在該領域存在的阻礙…在開發該報告過程中我們進行了詳盡的現狀分析,結論顯示國家普遍沒有承擔為企業境外侵權行為的受害者提供有效司法救濟的義務。受害者在尋求救濟時仍然面臨著眾多的阻礙,有時還出現尋求救濟的途徑被完全堵死的情況。雖然相關國家在立法、法庭程序、人權保護和法律傳統方面存在著差異,但在所有司法制度下都存在著阻礙受害者尋求救助的情況。在一些案例中,這些阻礙被成功地克服,其原因往往是:律師採用了全新的訴訟方案;受害者有足夠的耐心;有著敏銳洞察力的法官願意受理此類維權訴訟。國家必須制定強硬、一致的政策,重申受害者的人權重於企業的經濟利益。企業侵權人權行為的受害者,無論侵權行為在何地發生,都有權獲得全面、有效的司法救濟。為實現上述目標,每一個國家都應該審視司法制度中的存在障礙,並考慮採取行動加以消除,特別是考慮本報告提出的相關建議...

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Author: Gwynne Skinner, Robert McCorquodale, Olivier De Schutter & Andie Lambe

"第三大支柱: 让跨国公司侵犯人权行为的受害者获得司法救济", 2013年2月

“获得司法救济项目”(A2JR)设立的目的是确认并分析美国、加拿大和欧洲在该领域存在的阻碍…在开发该报告过程中我们进行了详尽的现状分析,结论显示国家普遍没有承担为企业境外侵权行为的受害者提供有效司法救济的义务。受害者在寻求救济时仍然面临着众多的阻碍,有时还出现寻求救济的途径被完全堵死的情况。虽然相关国家在立法、法庭程序、人权保护和法律传统方面存在着差异,但在所有司法制度下都存在着阻碍受害者寻求救助的情况。在一些案例中,这些阻碍被成功地克服,其原因往往是:律师采用了全新的诉讼方案;受害者有足够的耐心;有着敏锐洞察力的法官愿意受理此类维权诉讼。国家必须制定强硬、一致的政策,重申受害者的人权重于企业的经济利益。企业侵权人权行为的受害者,无论侵权行为在何地发生,都有权获得全面、有效的司法救济。为实现上述目标,每一个国家都应该审视司法制度中的存在障碍,并考虑采取行动加以消除,特别是考虑本报告提出的相关建议...

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Lawsuit
18 February 2014

Cape/Gencor lawsuits (re So. Africa)

Author: Business & Human Rights Resource Centre

In 1997, a group of five South Africans suffering from asbestos-related disease (ARD) brought suit against Cape PLC in the English High Court seeking compensation for their injuries from Cape’s asbestos mining and milling activity in South Africa.  The plaintiffs, former Cape workers and individuals living in the vicinity of Cape’s operations, alleged that Cape exposed its workers to 30 times the British legal limit of asbestos dust without adequate protective gear and that asbestos related injuries were suffered by those living near Cape’s asbestos operations.  After the claim was filed, Cape applied to stay these claims on forum non conveniens grounds, arguing that the case should be tried in South Africa.  At the beginning of 1998, Cape’s application was granted by the trial court, but the Court of Appeals later reversed the lower court’s decision.  In 1999, another 2000 claims were commenced against Cape in England for ARD based on Cape’s activity in South Africa.  Cape reapplied to stay these new claims, in addition to those filed in 1997, and Cape’s application was granted.  On appeal, the Court of Appeals affirmed the lower court’s ruling.  The plaintiffs then appealed to the UK House of Lords, and in 2000 the Law Lords held that the case should be allowed to continue in the English High Court.  The Law Lords found that South African courts would not be a viable alternative forum because legal aid in South Africa had been withdrawn for personal injury claims and no reasonable likelihood existed for the plaintiffs to acquire effective legal representation on a contingency fee basis for a case of such complexity.  After the House of Lords decision, more claimants joined the case, and by 2001 there were approximately 7500 claimants.  In 2001, Cape agreed to a £21 million out-of-court settlement with the plaintiffs, but the company encountered financial problems in August 2002 and did not meet the agreed settlement terms.  Therefore, the litigation recommenced in September 2002, and Gencor Ltd. was joined as a defendant in the case.  Gencor is a South African company which took over some of Cape’s South African asbestos operations when Cape left the country in 1979. 

In 2003, the plaintiffs, Cape and Gencor reached a settlement agreement.  There were three parts to the settlement.  First, Gencor established and now administers a £35 million trust in South Africa (the trust is to compensate ARD victims in South Africa who were not represented by Leigh Day & Co.).  Second, Cape settled with its 7500 claimants for £7.5 million.  Third, Gencor settled with the 7500 claimants for approximately £3 million.

 

- [PDF] “Cape plc: South African Mineworkers' Quest for Justice”, Richard Meeran [counsel for plaintiffs], International Journal of Occupational Environmental Health, Jul/Sep 2003

- Action for Southern Africa: “Cape Caves in on South African Asbestos Case”, 13 Mar 2003

 

- Cape PLC: Cape Annual Report 2003 [scroll to page 47, item 26(ii) for discussion of 2003 settlement]

 

- Leigh Day & Co. (plaintiffs’ counsel): South African Asbestos Victims Finally Get Their Money, 30 Jun 2003

- Thompsons Solicitors (counsel for claimants suing Gencor): Landmark Settlement Brings Justice for Thousands of SA Former Asbestos Miners, 13 Mar 2003

 

- UK House of Lords: Judgments - Schalk Willem Burger Lubbe (Suing as Administrator of the Estate of Rachel Jacoba Lubbe) and 4 Others and Cape Plc. and Related Appeals, 20 July 2000 [House of Lords decision]

Article
5 February 2014

Access to Justice and Extractive Industries (UK)

Author: London School of Economics & Political Science (LSE) with Environmental Justice Organizations, Liabilities & Trade (EJOLT) & Business & Human Rights Resource Centre

A panel of international legal and industry experts discuss the fraught world of environmental justice, human rights, minerals and mining...EJOLT project (Environmental Justice Organizations, Liabilities and Trade) will also launch its global map of environmental (in)justice. Aidan Davy is deputy president and senior program director at the International Council for Mining and Minerals (ICMM)...Juan Pablo Saenz is a lawyer at the Amazon Defense Coalition...Richard Meeran is a partner at Leigh Day & Co. Richard pioneered claims against UK-based multinationals, Cape PLC for 7,500 South African asbestos victims and Thor Chemicals for South African workers poisoned by mercury. Since 2004, Richard has worked with South African NGOs & gold miners on silicosis claims against Anglo American, and with Tanzanian villagers in a claim against African Barrick Gold. Jake White is a environmental lawyer at Friends of the Earth.

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Article
1 December 2013

[PDF] The Third Pillar: Access to Judicial Remedies for Human Rights Violations by Transnational Business

Author: Gwynne Skinner, Robert McCorquodale, Olivier De Schutter & Andie Lambe

The Access to Judicial Remedy (A2JR) Project set out to identify and analyze the barriers in the United States, Canada, and Europe…The detailed mapping exercise undertaken in the development of this Report shows that States are generally not fulfilling their obligation to ensure access to effective judicial remedies to victims of human rights violations by businesses operating outside their territory. Victims continue to face barriers that at times can completely block their access to an effective remedy…These barriers have been overcome in only some instances…Victims of human rights violations by business, wherever the violations occur, are entitled to full and effective access to judicial remedies. In order to provide this, each State should examine the barriers in their jurisdiction and consider the range of actions they can take to alleviate them, and in particular, the recommendations contained in this Report…[Refers to Alstom, Amesys (part of Bull), Anvil Mining (part of China Minmetals), Barrick Gold, Bull, Cambior, Cape PLC, Chevron, Chiquita, Daimler, DLH (Dalhoff Larsen & Horneman), Drummond, ExxonMobil, HudBay Minerals, Monterrico Metals (part of Zijin), Shell, Talisman, Texaco (part of Chevron), Thor Chemicals, Unocal (part of Chevron), Veolia Environnement (formerly Vivendi), Veolia Transport (part of Veolia Environnement), Walmart, Zijin]

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Article
6 August 2013

[audio] Silicosis: the largest class action suit in South African history and why it still matters

Author: Redi Tlhabi show, Talk Radio 702 (So. Africa)

Redi speaks to human rights lawyer Richard Spoor about his silicosis class action suit against gold mines, which is mooted to be the biggest class action case in the country. This case will have far reaching effects for the gold mining industry and for its relations with the government.

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Article
1 January 2013

Alien Tort Backup Plan

Author: Michael Goldhaber, American Lawyer

On the off chance that business interests prevail in the U.S. Supreme Court reargument of Kiobel v. Royal Dutch Petroleum, alien tort plaintiffs may wish to review the record of corporate human rights litigation in English courts. This author's study…suggests that companies might find themselves missing alien tort law. In the mid-1990s, activist lawyers on both sides of the Atlantic sought a way to hold companies liable for human rights and environmental abuse committed in other nations. U.S. lawyers primarily chose the Alien Tort Statute. U.K. lawyers began to file old-fashioned common law tort suits. Notwithstanding the rivers of ink devoted to alien tort, common law theory has been surprisingly effective. [also refers to Unocal, Trafigura, BHP, Cape plc]

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Article
26 September 2011

Mine class action could start soon [So. Africa]

Author: Dineo Matomela, Business Report [So. Africa]

More than 300 000 retired gold mine workers, who contracted silicosis or tuberculosis (TB) during or after their employment in the industry, were pushing for the start of a multibillion-rand class action next year, lawyer Richard Spoor said on Friday. He said the class action would be against AngloGold Ashanti, Barrick Gold Africa, DRDGold, Gold Fields, Harmony Gold, JCI Gold, Randgold & Exploration, Rand Uranium [joint venture Harmony Gold, Pamodzi Resource Fund], African Rainbow Minerals and Pamodzi Gold. The retired miners from across South Africa and neighbouring countries could receive billions in compensation. The case would represent all employees who contracted silicosis in local mines from the 1950s onwards, as well as the widows and estates of workers who contracted tuberculosis. Spoor said it was standard practice for the companies to dismiss workers once they had contracted silicosis...Earlier this year the Constitutional Court ruled in favour of an AngloGold Ashanti employee, Thembekile Mankayi, which allowed him to sue the Anglo American group company for contracting silicosis. [also refers to Anglo American, Cape plc, Gencor]

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Article
7 July 2011

House of Commons debate about human rights concerns in Legal Aid Bill [UK]

Author: Leigh Day

Concerns about access to justice for those people who have suffered personal injury or human rights abuses because of the actions of UK companies operating abroad were discussed in a House of Commons debate on 29th June 2011...Leigh Day is not alone in expressing anxiety about the proposed changes to civil litigation costs which will make it almost impossible to bring cases against multinationals. Labour MP Lisa Nandy raised this topic in the Commons...During the debate Nandy referred to the difficulty of bringing group actions and the fact that ending the ability to recover the success fee from defendants will make such cases virtually impossible to run...Michael Mansfield...said that the proposals are a “flagrant violation of the coalition’s own commitment to human rights.” That is why I [Lisa Nandy] am asking for exemption in these particular cases. [refers to Cape, Rio Blanco]

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Article
24 May 2011

Multinationals will profit from the government's civil litigation shakeup [UK]

Author: Richard Meeran, Leigh Day, in The Guardian [UK]

The government's proposed changes to the civil litigation costs regime, which will severely restrict access to justice for many vulnerable individuals, have so far passed relatively unnoticed. However, those adversely affected will include victims of UK multinational human rights violations in developing countries…Two aspects of the government's proposals…will dramatically impact on claimant lawyers' ability and enthusiasm to litigate in future: First, that defendants should only pay claimants' legal costs if "proportionate" to the compensation…these cases…are intrinsically complex. Moreover as so much is at stake, the multinationals instruct top City law firms to defend them to the hilt. Consequently, legal costs invariably substantially exceed compensation…Secondly, claimant lawyers' success fees will not be recoverable from defendants and would instead need to be deducted from claimants' compensation…The result – that claimants' lawyers can recover legal costs only up to the level of damages without success fees – will make these multinational cases financially unviable. [refers to Cape, Thor Chemicals, Trafigura, BP, Monterrico Metals (part of Zijin)]

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