Legal Davids and Goliaths

Thirty-three Peruvian farmers have recently received out-of-court settlements for the alleged torture they suffered after protesting against a UK mining company’s proposals to set up camp on their land.

Just days later, in the High Court, a group of elderly Kenyans were given permission to bring a claim against the Government for the abuse and torture they suffered in the 1950s.

These should both be positive wins, David winning over Goliath, yet the UK Government is forging ahead with legislation which will make it practically impossible for most people in poor countries to seek justice in British courts.

This legislation is part of the anti-no win/no fee push within the Legal Aid, Sentencing and Punishment of Offenders Bill which would will also remove the ‘success fee’ paid to specialist law firms that bring human rights abuse cases against UK multinationals operating overseas, substantially reducing the economic viability of these cases for those firms. These provisions will therefore prevent many claimants in poor countries seeking justice in the UK, even though they are not currently eligible for legal aid and the legislation will therefore provide no savings to the taxpayer.

In 2005, dozens of poor Peruvian farmers protesting against the construction of the Rio Blanco mine by UK-owned Monterrico Metals, say that they found themselves variously beaten, threatened, hooded, held captive, shot, sexually assaulted and threatened with rape by Peruvian police. One protestor was shot and bled to death the following day.

After the farmers failed to find justice in Peru, UK law firm Leigh Day took up their case, and the allegations of torture were due to be heard in the High Court in October. While not admitting liability, Monterrico last week agreed to an out-of-court settlement with the farmers.

Without the prospect of a success fee recoverable from the defendant, and legal costs fixed below the level of compensation, the Monterrico case could never have been pursued and the farmers would never have received compensation.

CAFOD is calling for two vital amendments to the Bill. First, human rights cases should be exempt from the abolition of the success fee. If found guilty of human rights abuses, a company should have to pay both the claimants’ lawyers’ normal fees and success fees.

Second, if found guilty of human rights abuses, a company should pay all costs deemed necessary by the human rights’ legal team to prepare a credible base of evidence for the court case. Those costs should not be capped below the level of the compensation payments, and none of the costs should come out of the compensation paid to victims.

At CAFOD we believe utterly that access to justice must not be dependent on financial clout. If these amendments are not made to the Legal Aid Bill we will be abdicating our responsibilities as a nation to hold to account unscrupulous companies that disrespect human rights and take advantage of the weaker governance of some of the countries where they set up shop.

-----------

(c) Pascale Palmer is Senior Press Officer (Policy & Campaigns) for CAFOD - www.cafod.org.uk