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How Sierra Leonean farmers got their day in Court

On Monday 29th January 2018, 41 claimants from the rural Tonkolili district in Sierra Leone started having their cases heard in the High Court in London. How did this historic case, which will see a High Court judge sit in a makeshift courtroom in Sierra Leone for two weeks, get this far?

Some of the claimants taking their legal claims against Tonkolili Iron Ore Ltd
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Martyn Day is co-founder of the firm. He specialises in international, environment and product liability legal claims, often as group actions. Liberty is a trainee lawyer in the international department.
The case against iron ore producer Tonkolili Iron Ore Ltd (formerly a subsidiary of the once UK headquartered African Minerals Ltd) centres around two protests in Sierra Leone.

In 2010, villagers protested as they claim that Tonkolli Iron Ore Ltd stole their valuable farm land without compensating them. In 2012, workers held a strike to protest about the conditions at the mine.

The Claimants allege that the mine owners instructed the Sierra Leonean police force to use excessive violence to quell both these otherwise peaceful protests. The allegations include that they were shot, beaten, arbitrarily arrested, subject to sexual violence and tortured.

The Defendants deny these allegations. As a result of the abuse and mistreatment by the Defendants’ employees and/or the Sierra Leonean police force, they claim to have suffered physical and psychiatric injuries and financial loss.

The 6 week trial is taking place in both London and Sierra Leone. Mr. Justice Turner will travel to Sierra Leone for weeks 2 and 3 of the trial where he will sit as a Special Examiner.

Civil Procedure Rule 34.13 provides for the appointment of a Special Examiner. This rule makes provision for when a party wishes to take evidence from a witness who does not reside in the UK. CPR 34.13(4) states that “(i)f the government of a country allows a person appointed by the High Court to examine a person in that country, the High Court may make an order appointing a special examiner for that purpose”.

Leigh Day, on behalf of the claimants, applied for Mr. Justice Turner to sit as a Special Examiner because of fears that their witnesses to the 2010 and 2012 strikes, and their clients, would be denied visas to the UK.

The lawyers argued that, if visas were denied, the best option was for Mr. Justice Turner to sit as a Special Examiner so that their evidence could be heard live.

The Defendant witnesses (mainly expatriate mining professionals) would not face the same travel restrictions and so would all be able to give evidence in person in the UK Court.

Lawyers for the Defendant opposed the application for Mr Justice Turner to sit as a Special Examiner, stating costs - arguing that it was sufficient for the Claimants’ witnesses to give their evidence via video link.

They also opposed the application due to the inconvenience to their legal teams to be abroad for two weeks of trial.

However, Mr. Justice Turner accepted the Claimants’ arguments and granted the order conditional on the Claimants’ witnesses’ visas being rejected.

The majority of the visas were subsequently rejected and so the Special Examiner appointment proceeded. Permission had to be requested from the Sierra Leone government, via the Sierra Leone Attorney General, for Mr. Justice Turner to be allowed to sit in Sierra Leone as a Special Examiner, a request which they subsequently approved.

The precedent for this route was laid out in of the case of Kimathi v Foreign and Commonwealth Office [2015] EWHC 3116 (QB). In Kimathi the Court did not require the Kenyan judicial authority to take evidence, or involve any arrangements to be made by the Kenyan judicial authorities for the evidence to be taken, and so a formal route requiring a Letter of Request as laid out at CPR 34.13(1A) was not required.

The same facts applied to the appointment of a special examiner in this case and so the less formal route sufficed.

It is a credit to the UK judicial system - so often called the 'gold standard' - that persons from anywhere in the world and any background can get their day in court in pursuit of justice against a UK based company, and on an equal footing to a billion dollar mining-giant.

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