“The defendant relied on the police to provide support not only at the mine but at key transport locations. Police posts were set up in strategic positions across the project with the particular aim of deterring fuel theft which was a chronic and pressing problem.”
‘the police have no transport capability, if we do not supply and/or maintain it it will not happen’
“191. The video footage also reveals that some of the villagers were throwing rocks and stones at the police which, although far less lethal than the array of firepower which the latter had at their disposal, doubtless acted as a provocation to the continued and wholly disproportionate use of force by the police.”
“195. I am satisfied that, on one or more occasions, members of the SLP attended at the mine during the course of the 2012 incident and that they were given cash payments. Indeed, both Mr Jansen (the general manager of the mine succeeding Mr Ramunno) and Mr Gordon recalled that the police had attended during this period. I am also satisfied, despite Mr Dumbuya’s protestations to the contrary, that he made at least some of the payments to the SLP. 196. I would have been surprised if such payments had not been made. After all, there was an established history of the defendant making cash payments to the police for the provision of their services. The police presence in the location of the mine specifically in April 2012 was on a considerable scale and had involved the re-deployment of many men from far distant locations. I am satisfied that, but for the provision of cash, the police response would have been considerably less robust. The significance of this is that it cannot be assumed that the payment of money is, in itself, a compelling factor supporting the conclusion that the defendant had thereby assumed a greater than appropriate level of control over the SLP. It would be understandable, against the background of a more tightly regulated and stringent police organisation than that which then operated in Sierra Leone, that a darker purpose might be inferred from such payments but, not for the first time in this case, the fact-finding exercise must not be performed without regard to the prevailing social and political context in which it falls to be carried out. 197. Several witnesses gave evidence of what they allege was said by employees of the defendant to the officers to whom money was being distributed. I readily accept that the cash was not given out in silence and that the donors made no secret of the fact that they were looking for some return on their investment. However, there is a distinction to be drawn between, on the one hand, encouragement to do a proper job with proportionate enthusiasm and, on the other, giving instructions to deploy unlawful means. In this regard it is to be noted that the evidence of the claimant’s witnesses on the point is, by and large, distinctly bland.”
“256. In all the circumstances, I am satisfied that Mr Dumbuya was out and about with the SLP during the 2012 incident and sometimes driving them in the HAWK vehicle. I am not, however, satisfied that he was encouraging or intending them to act unlawfully or condoning the use of excessive violence against victims of the police abuses.”
“281. The SLP was relatively poorly financed. Its resources were never likely to be such as to fund the additional extra numbers required effectively to police the expanding population in the locality of the mine. The defendant could rely upon the substantial deployment of officers in the locality of the mine only by making repeated financial contributions to the SLP. The evidence that it was quite usual for individuals or companies in Sierra Leone to pay the police for their services went unchallenged.” b) The necessity of such payments. He said at [293]: “293. I do not find this line of authorities to be of particular assistance in the instant case. I am in little doubt that, save perhaps for payments made by the defendant in respect of the billeting of police officers at the mine itself, the SLP were not entitled to require, or permitted to accept, payment for the services it provided when seeking to maintain law and order in the locality of the mine. However, in reality, if the defendant had not paid for these services they would either not have been provided or, at best, would have been woefully inadequate. The SLP raised unlawful charges for services which they should have rendered free of charge but this did not give rise to any consequences of direct legal significance in the instant case. I say “direct” because it remains open to the claimants to argue that the making of such payments impacted on the nature of the factual relationship between the defendant and the police in ways which are material to the resolution of this case.” c) The foreseeability of SLP abuses. He said at [297] – [300]: “297. I am satisfied that, even prior to the incident in 2010, senior management of the defendant were aware that the SLP had a general reputation for the occasional deployment of disproportionate violence but had had no direct experience of it. Indeed, such was the evidence of Mr Ramunno. Mr Hallahan was far more circumspect about what knowledge he was prepared to admit to but he conceded that he had been aware of newspaper reports alleging corruption and violence and the only issue was as to the extent to which he did or ought to have afforded them credibility… 299. After the incident in 2010, the defendant could have been in no doubt that the SLP were capable of overreacting to protest and lawlessness with a level of violence disproportionate to what was reasonably necessary and were capable of acts of random collective retaliation. 300. Of course, there is a danger that “hindsight bias” will distort any judgement as to the extent to which, in retrospect, the violence of the SLP in 2010 (and 2012, for that matter) could have been foreseen but, on the whole of the evidence, I am left in no doubt at all that senior management of the defendant was aware of at least some risk that the police might go too far and use excessive force on protestors. Prior to the 2010 incident, however, the police had not resorted to violence in dealing with matters reported to them by the defendant and, save for the two incidents which are at the centre of these claims, the defendant was able to demonstrate that on all other occasions, the police had acted proportionately and with restraint.” d) The respondents’ influence over the SLP. The judge said at [302]: “302. I am not satisfied that the evidence in this case reveals that the defendant could or did exercise an improper or decisive degree of control over the actions of the police with respect to the handling of the 2010 and 2012 incidents. The following points fall to be considered: (i) There is ample evidence that the Government of Sierra Leone publicly, consistently and strongly supported the activities of the defendant and repeatedly warned the local population against the consequences of undermining the defendant’s operations. Nevertheless, these exhortations fell very far short of providing the SLP or the defendant with carte blanche to use disproportionate violence in response to unrest. Nor did they indicate or imply that the police should show undue deference to the defendant in deciding what means to deploy in maintaining the peace. (ii) Naturally, the post of PLO was created to facilitate co-operation between the defendant and the SLP. I am satisfied, however, that the holders of these posts were neither intended nor encouraged to provide the defendant with an inappropriate degree of control over the police. On the contrary, the defendant might well have been criticised if it had failed to establish such go-betweens as might promote the free exchange of mutually beneficial information and support. The same applies to the relatively easy access the defendant no doubt enjoyed to very senior officers of the SLP. Again, I am satisfied that such access was not a means by which the defendant sought to exercise improper influence. (iii) Furthermore, there are examples of particular occasions upon which the police would appear to have been unduly deferential to the wishes of the defendant with respect to the making of arrests, the granting of bail and the like. These are fully set out in the claimant’s closing submissions. These examples, however, fall far short of demonstrating that the defendant had or exercised a power to direct the police to deploy unlawful and disproportionate means to respond to protest. (iv) There are documented occasions upon which the defendant called for police support or reinforcements in response to specific incidents. However, bearing in mind the ever present risk of unlawful protest, it was only to be expected that the defendant called upon the police to respond and that the police would do so. (v) There was a high degree of contact between the defendant’s employees and the SLP during the course of the incidents. This, however, is hardly surprising. There was a very real risk that the local unrest could, at any time, escalate into a full scale assault on the mine. In 2012, for example, rumours were circulating of a plan by local youths to board a train to invade the mine and the option to evacuate the mine was under constant review. I accept the evidence of Mr Janson that the priority was always safety.”
“It seems to me to be well-established that a person who acts with another to commit a tort in furtherance of a common design will be liable as a joint tortfeasor. It is not enough that he merely facilitates the commission of the tort unless his assistance is given in pursuance and furtherance of the common design”
“42. That is not, however, this case for Miss Gale's act of assistance cannot be considered in isolation. Understanding that the object of the exercise was to find Mr Ismaili and "beat him up" (as she put it), she agreed to assist by pointing out the address at which she believed he lived and, in so doing, expressly or by the clearest implication, became part of the common design. It was not suggested that the fact that Mr Shah (as opposed to Mr Ismaili) was attacked makes any difference and that she was not present when the men returned to the house that she had identified is irrelevant. I have no doubt that in relation to an assault on the occupier of 41 Hibernia Road, Miss Gale was a joint tortfeasor. In this regard, I deal with Mr Clark's submission that the wrong defendant has been chosen because the Claimant would have been bound to succeed against some or all of the Part 20 Defendants: Mrs Shah has not chosen the only defendant that she could pursue but she has chosen one who is liable and against whom she was entitled to bring proceedings.”
“66. I am conscious that, as Thorpe LJ stated in Credit Lyonnais v Export Credit Guarantee Department[1998] 1 Lloyd’s Rep 19 , 48, it is dangerous to draw confident inferences from equivocal facts when assessing motives and intentions. I do not, however, consider that the documents in this case are equivocal. SSCS may have considered the cutting of nets and freeing of fish in international waters not to be tortious because in their view the fishing was illegal. But, it is to be recalled that in Unilever plc v Gillette (UK) Ltd[1989] RPC583 Mustill LJ stated that there was no need for the common design to be to commit the tort. It suffices that the parties have combined to secure the doing of acts which in the event prove to be tortious. I have concluded that in inferring from the documents before him that the purpose of the campaign was investigation, documentation, and exposing illegal activities but that it did not, notwithstanding the contents of these documents, encompass violent intervention, the judge fell into error.”
“42. Although other commentators (e.g. Davies [2011] CLJ 353 and Dietrich (2011) 31 Legal Studies 231) have continued to argue that the rejection of tortious liability for knowing assistance is mistaken, the position is that joint responsibility in the law of tort is more restricted than it is in the criminal law. In this context, the law of tort does not recognise true accessory liability, only joint liability where the person who can be termed the actual perpetrator is the agent of another person. Taking Devlin J's well-known example in NCB v Gamble[1959] 1 QB 11 at 23, the consequence is that selling a person a gun knowing that person will use it to kill someone else will make the seller an accessory to the murder but will not in itself make him liable in tort. Joint responsibility in the law of tort is also more restricted than it is in equity where knowingly to assist a person to commit a breach of trust amounts to an equitable wrong.”
“21. To establish accessory liability in tort it is not enough to show that D did acts which facilitated P’s commission of the tort. D will be jointly liable with P if they combined to do or secure the doing of acts which constituted a tort. This requires proof of two elements. D must have acted in a way which furthered the commission of the tort by P; and D must have done so in pursuance of a common design to do or secure the doing of the acts which constituted the tort. I do not consider it necessary or desirable to gloss the principle further. 22. The principle was expressed crisply in the statement in Clerk and Lindsell on Torts, 7th ed, p 59, that “Persons are said to be joint tortfeasors when their respective shares in the commission of the tort are done in furtherance of a common design”, which was cited by all the members of the Court of Appeal in The Koursk[1924] P 140 , 151, 156, 159… 27. If I had considered that Hamblen J was wrong not to find that the first element of accessory liability was established, that is, that the appellant assisted SSCS in the commission of acts which may prove to have been tortious, I would have held that the second element was also established, that is, that the acts were done in pursuance of a common design shared by SSCS and the appellant. It would be sufficient for this purpose that the acts were done in pursuit of a campaign of which the appellant approved with the knowledge that the campaign involved a preparedness, if need be, to use violent intervention. Hamblen J observed that it was not necessarily the case that such action would take place, but a plan can include a conditional element. If D organises with P the doing of acts on V’s land, whether V consents or not, it would be no answer to a claim in trespass against D that it was possible that V would consent. But Hamblen J examined the role actually played by the appellant and judged it minimal. On that basis the conduct element of accessory liability was not established.”
“44. Intent in the law of tort is commonly relevant as a control mechanism limiting the ambit of a person’s obligation to safeguard the rights of others, where this would constrict his freedom to engage in activities which are otherwise lawful. The economic torts are a classic illustration of this. The cases on joint torts have had to grapple with the same problem, and intent performs the same role. What the authorities, taken as a whole, demonstrate is that the additional element which is required to establish liability, over and above mere knowledge that an otherwise lawful act will assist the tort, is a shared intention that it should do so. The required limitation on the scope of liability is achieved by the combination of active co-operation and commonality of intention. It is encapsulated in Scrutton LJ’s distinction between concerted action to a common end and independent action to a similar end, and between either of these things and mere knowledge of the consequences of one’s acts.”
“113. Regardless of the range of opinions which they held, I am not satisfied on the evidence that, before the events of the first incident of major violence, it had been the intention of any senior member of the defendant’s staff that unlawful means should, if occasion required, be deployed to resolve the recurrent disputes... 177. However, I am further satisfied that, despite what they witnessed and what they already knew of the reputation of the SLP, it was not the intention of any member of the senior management team of the defendant that the police should use unlawful means to respond to the 2010 incident. I note that: (i) The contemporaneous documentation falls short of revealing expressly, or by implication, that senior members of the defendant’s staff intended that the police should deploy unlawful measures in responding to unrest on the part of the villagers. (ii) It was against the economic interests of the defendant for the police, for example, to use excessive force against the local population. Of course, it was to be expected that the defendant would wish there to be a firm response to the illegal blockading of the roads, stone throwing and criminal damage of company property. However, a disproportionate response, particularly one which was, in part, randomly directed against wholly innocent villagers was very likely to breed future resentment, hostility and mistrust none of which would be in the long term business interests of the defendant. (iii) The efforts of the defendant to reach a compromise with the protesters in the period leading up to the outbreak of violence by, for example, engaging in prolonged discussions in the Court Barray, are difficult to reconcile with a sudden strategic shift towards complicity in unlawful violence and abuse shortly thereafter. (iv) The volatility of the police response can readily be accounted for without concluding that the defendant had a hand in it or supported it. Levels of discipline and self-control in the SLP were undoubtedly variable and, when confronted with hostility and rock throwing, some officers are unlikely to have needed any further encouragement to respond in a disproportionate manner. Many may well have thought that their more extreme actions were, in any event, likely to be cloaked in state approval rather than to be exposed and punished.” (i) The contemporaneous documentation falls short of revealing expressly, or by implication, that senior members of the defendant’s staff intended that the police should deploy unlawful measures in responding to unrest on the part of the villagers. (ii) It was against the economic interests of the defendant for the police, for example, to use excessive force against the local population. Of course, it was to be expected that the defendant would wish there to be a firm response to the illegal blockading of the roads, stone throwing and criminal damage of company property. However, a disproportionate response, particularly one which was, in part, randomly directed against wholly innocent villagers was very likely to breed future resentment, hostility and mistrust none of which would be in the long term business interests of the defendant. (iii) The efforts of the defendant to reach a compromise with the protesters in the period leading up to the outbreak of violence by, for example, engaging in prolonged discussions in the Court Barray, are difficult to reconcile with a sudden strategic shift towards complicity in unlawful violence and abuse shortly thereafter. (iv) The volatility of the police response can readily be accounted for without concluding that the defendant had a hand in it or supported it. Levels of discipline and self-control in the SLP were undoubtedly variable and, when confronted with hostility and rock throwing, some officers are unlikely to have needed any further encouragement to respond in a disproportionate manner. Many may well have thought that their more extreme actions were, in any event, likely to be cloaked in state approval rather than to be exposed and punished.”
“353. In many of the relevant authorities, the alleged negligence of the defendant has been confined to one central issue. In Mitchell, for example, it was a failure to warn. In Hartwell it was the provision of access to a firearm. In contrast, the Re-Amended Particulars in the present case identify no fewer than fifteen particulars of negligence. Most of these relate to allegations falling very clearly on the omissions side of the “imprecise boundary” to which Lord Nicholls was referring in Hartwell. They include, for example, failures to have engaged in “any meaningful conflict resolution with protesters” and to have “sufficient and properly trained private security”
“14. The issue of principle on which the defenders challenge the pursuers' common law case was put into sharp focus by Mr McEachran at the outset of his argument. He said that there had been an operational failure by the defenders in circumstances where it was reasonably foreseeable that harm would flow to the deceased if they did not warn him about their meeting with [D]. He stressed that his case was presented on a very narrow front. All he was saying was that there was a duty to warn, and that this duty arose because harm to the deceased was reasonably foreseeable. Beguilingly simple though this submission was, it raises fundamental issues about the scope of the duty that is owed to third parties by landlords, whether in the public or the private sector, whose tenants are abusive or violent to their neighbours. 15. Three points must be made at the outset to put the submission into its proper context. The first is that foreseeability of harm is not of itself enough for the imposition of a duty of care: see, for example, Dorset Yacht Co Ltd v Home Office[1970] AC 1004 , 1037 - 1038, per Lord Morris of Borth-y-Gest; Smith v Littlewoods Organisation Ltd (reported in the Session Cases as Maloco v Littlewoods Organisation Ltd) 1987 SC (HL) 37, 59, per Lord Griffiths; Hill v Chief Constable of West Yorkshire[1989] AC 53 , 60, per Lord Keith of Kinkel. Otherwise, to adopt Lord Keith of Kinkel's dramatic illustration in Yuen Kun Yeu v Attorney General of Hong Kong[1988] AC 175 ,192, there would be liability in negligence on the part of one who sees another about to walk over a cliff with his head in the air, and forebears to shout a warning. The second, which flows from the first, is that the law does not normally impose a positive duty on a person to protect others. As Lord Goff of Chieveley explained in Smith v Littlewoods Organisation Ltd, 76, the common law does not impose liability for what, without more, may be called pure omissions. The third, which is a development of the second, is that the law does not impose a duty to prevent a person from being harmed by the criminal act of a third party based simply upon foreseeability: Smith v Littlewoods Organisation Ltd, 77- 83, per Lord Goff.”
“One must have regard to the purpose of the distinction [between acts and omissions] as it is used in the law of negligence, which is to distinguish between regulating the way in which an activity may be conducted and imposing a duty to act upon a person who is not carrying on any relevant activity…. To hold the defendant liable for an act, rather than an omission, it is therefore necessary to say, according to common sense principles of causation, that the damage was caused by something that the defendant did.”
“Although governments have the primary role of maintaining law and order, security and respect for human rights, Companies have an interest in ensuring that actions taken by governments, particularly the actions of public security providers, are consistent with the protection and promotion of human rights. In cases where there is a need to supplement security provided by host governments, Companies may be required or expected to contribute to, or otherwise reimburse, the costs of protecting Company facilities and personnel borne by public security. While public security is expected to act in a manner consistent with local and national laws as well as with human rights standards and international humanitarian law, within this context abuses may nevertheless occur.”
“370 (xiii) Continued to supply logistical and/or financial and/or material support to police after it was apparent that they were causing mistreatment including personal injury, unlawful detention and/or fatal injury to the Claimants. I am satisfied that the supply of vehicles was a reasonable response taking into account the fact that the police had inadequate means of transport of their own. Refusal to provide vehicles may well have escalated rather than mitigated the violence. The same number of police would have been present and armed at both incidents.”