In 2001, the Bodo community from the Niger Delta successfully used current UK legislation to win compensation, via British courts, from Shell after environmental damage to 2,000 hectares of land caused by multiple oil spills.
Another case involved the company Trafigura, which was accused of dumping waste in West Africa. Leigh Day, one of the UK’s most prominent human rights law firm, successfully fought Trafigura on behalf of more than 30,000 Ivorian victims allegedly poisoned from toxic waste. The Guardian reported that Trafigura paid £100m to the Ivorian government to help to clean up the waste, and £30m in compensation for the thousands of Africans who needed medical treatment.
Previous high-profile cases have included those brought by rural farmers from South America (BP) and South African asbestos miners (Cape PLC). It apparently cost Trafigura £14m defending the claim.
Zabbey Nenibarini, who led the campaign against Shell says: “The British courts provided us with fairness and justice to rebuild our communities and our businesses. This was achieved with no cost to the British taxpayer.”
Currently successful claimants can get guilty defendants to pay their legal fees, including their lawyers’ so-called success fee. These fees allow lawyers operating on a no-win, no-fee basis to pursue complex claims, including cases of human rights abuses, against the world’s largest companies.
But the UK government is currently proposing legislation, snappily named The Legal Aid, Sentencing and Punishment of Offenders Bill, that will shift the burden of costs from the multinational companies defending the case to the impoverished victims struggling to gain justice.
Ken Clarke’s Legal Aid Bill has now seen more defeats (11, including two this week) than any other coalition piece of legislation. As well as cutting £350m out of the Ministry of Justice’s annual legal aid budget, the bill will reconfigure no-win, no fee agreements.
The Government is proposing to change the system so that lawyers’ success fees and the insurance premiums would be paid out of the damages awarded to the victim instead of being paid by the losing company. In practice this would make bringing a court case financially impossible for many victims from developing countries.
It prevents claimants from recovering their expensive insurance premiums and lawyers’ success fees from losing defendants. Instead, the costs will have to be paid out of any final award. The insurance premium, which may amount to millions of pounds, is essential for the case to proceed in the first place, to cover the legal fees incurred by both sides in the event that the claimants lose the case.
These cases they are not currently eligible for legal aid and the legislation will therefore provide no savings to the taxpayer. These provisions of the Bill effectively remove the possibility of poor communities bringing cases against multinational companies, which have huge budgets and are able to access expertise and resources which dwarf those available to poor and vulnerable people.
It is usually not possible in countries such as the Ivory Coast to bring local claims effectively. The country has a population of 22million, with 42.7% of them living in poverty. The average wage is £730 per year and life expectancy is 54 years.
There were tens of thousands of claimants who had produced details of their injuries. But, under European law, such companies have to be sued in the country of their jurisdiction, which in this case was England. In comparison, such multinational companies usually have very substantial revenues, profits, deep pockets and insurance to fight such claims. Trafigura is a company that has reported revenues of $121.5bn and profits of $1.11bn.
In the light of these developments, Amnesty International, Oxfam, Friends of the Earth and Cafod have united via a ‘Sound off for Justice’ campaign fighting to ensure victims of human rights abuse and environmental crime committed abroad by multinationals can still access justice in UK courts.
We have drawn the attention to the UK Government’s professed commitment to the UN Guiding Principles on Business and Human Rights, warning that if it passes this legislation it will make access to justice for victims of these cases, which cost the British taxpayer no money, virtually impossible. The changes will only benefit the multinational company, who will be shielded from paying both the success fee and insurance premium.
More importantly the changes will likely prevent the company facing any legal challenge in the first place, leaving irresponsible companies free to abuse human rights with impunity.
This legislation is still live with the latest round of debate taking place in the House of Lords this week. The campaign proposed amendment to the bill to rectify these issues, but tragically, the Lords have just rejected amendments (see Division 6) to protect rights of overseas victims of right abuses by a vote of 206 to 176.
The bill now faces a period of Parliamentary ping-pong, where the Commons and the Lords cannot agree on the final text of the bill.
We may have a globalised economy but we should also have global justice. These changes will discriminate against victims of injustice from developing countries who look to London for justice. Poor people around the world who have suffered human rights abuses at the hands of UK companies will be innocent victims of a bill which will strip away their ability to seek redress in UK courts. The bill is now on a collision course with justice.
Roger James is a campaigner for Oxfam South West in Bristol