UK: Supreme Court Confirms Zambia Environmental Group Claims Can Proceed Against Parent Company

Last Updated: 2 May 2019
Article by Liz Tout and Catherine Gilfedder

The Supreme Court last week handed down its long-awaited judgment in Vedanta Resources PLC and another v. Lungowe and others [2019] UKSC 20. It confirms the right of Zambian citizens to proceed in the English courts with claims relating to alleged toxic emissions from the Nchanga Copper Mine, owned and operated by Vedanta's subsidiary, Konkola Copper Mines plc (KCM). The case is one of three recently decided by the Court of Appeal relating to the level of control required by a parent company over its foreign subsidiary's operations for a duty of care to arise towards those affected by the operations.1 The Supreme Court's judgment has potentially important consequences for similar tort claims against parent companies.

Agreeing with the Court of Appeal and Coulson J, the Supreme Court unanimously held that the claims, brought in negligence and for breach of statutory duty, could proceed against both Vedanta and KCM because:

  • there was a triable issue as to whether Vedanta had a common law duty of care in favour of the claimants or a statutory liability for breaches of Zambian environmental protection, mining and public health legislation;
  • the claims were not an abuse of EU law, specifically Article 4.1 of the Brussels Recast Regulation that confers a right for any claimant to sue an English-domiciled defendant in England;
  • KCM was a necessary or proper party to the claim against Vedanta; and
  • although Zambia was the "proper place" for the litigation, there was a real risk that substantial justice would not be obtained there due to the practical impossibility of funding and unavailability of suitable legal representation.

Whether there was a triable issue that Vedanta owed a duty of care

Of greatest interest to English-domiciled companies with foreign operations are the Court's comments regarding when a parent will owe a duty of care to those affected by the subsidiary's operations, such that environmental or human rights violations may give rise to liability in tort for the parent. Coulson J and the Court of Appeal had held that Vedanta's public statements regarding KCM's activities at the mine, a management services agreement between the two companies and witness evidence of a KCM manager together established that Vedanta had a sufficient level of control over KCM's operation of the mine potentially to give rise to a duty of care.

The Supreme Court agreed. Noting first that the level of intervention in the management of the mine needed to give rise to a duty of care was a question of Zambian law, Lord Briggs (with whom all the other Justices concurred) observed that the question of whether that level was reached in Vedanta's case was one of fact. He rejected Vedanta's argument that to find a duty of care would involve a "novel and controversial extension" of the tort of negligence. Rather, Lord Briggs considered that parent company liability for the activity of subsidiaries is not, of itself, a distinct category of liability in negligence. The existence of a duty of care would depend on "the extent to which, and the way in which, the parent availed itself of the opportunity to take over, intervene in, control, supervise or advise the management of the relevant operations (including land use) of the subsidiary".

Thus, the Supreme Court confirmed, ordinary tort principles governing duties upon third parties (such as consultants) apply to a parent dealing with its subsidiary. Lord Briggs was "reluctant to seek to shoehorn all cases of the parent's liability into specific categories", noting the limitless models of management and control which may be put in place within multinational groups of companies. This approach, which appears more flexible than that suggested by the Court of Appeal, will be argued by some to leave open the possibility of parent liability in a greater range of circumstances.

On the facts, while Lord Briggs indicated he might have been less persuaded than Coulson J or the Court of Appeal by the management services agreement or witness evidence, Vedanta's published materials alone were sufficient to show it was arguable that a sufficient level of intervention in the operations of the mine may be demonstrable at trial. In particular, the Claimants had relied upon a Vedanta report entitled "Embedding Sustainability" which stressed that the oversight of all subsidiaries lay with Vedanta's board and made particular reference to the problems with discharge at the mine which gave rise to the claims. Thus, it was fair to say Vedanta had by its policies "[assumed] responsibility for the maintenance of proper standards of environmental control over the activities of its subsidiaries, and in particular the operations at the mine" and had "not merely laid down but also implemented those standards by training, monitoring and enforcement".

Notably, Vedanta had suggested that there was a general principle that a parent could not incur a duty of care "merely by laying down group-wide policies and guidelines and expecting the management of each subsidiary to comply with them". This argument drew upon the Court of Appeal's decisions in AAA v. Unilever and Okpabi v. Shell (in neither of which were the claims allowed to proceed before the English courts). Lord Briggs disagreed, considering that even where a parent plays no role in implementation or oversight of its policies at subsidiary level, those policies may nevertheless in particular circumstances give rise to parent company liability, for instance if they contain "systemic errors" that then result in harm to third parties.

Whether England was the proper place and whether refusing jurisdiction would cause substantial injustice

The Supreme Court held that considering all of the relevant factors, Zambia would plainly have been the proper place for the litigation – the acts complained of primarily occurred there, the mine was operated under a Zambian licence and Zambian legislation, most of the evidence was therefore in Zambia and the claimants would have real difficulty travelling to England to give evidence.

Additionally, Vedanta had indicated its willingness to submit to the Zambian courts, meaning there was a forum in which the claimants could proceed against both defendants (avoiding the risk of irreconcilable judgments). Thus, if substantial justice were available to all the parties in Zambia, the Supreme Court considered the English courts should decline jurisdiction in favour of the Zambian courts.

However, the Supreme Court agreed with Coulson J's assessment that there was a real risk substantial justice would not be available in Zambia. First, it would have been practically impossible for the claimants to fund their claims given they were all in "extreme poverty", legal aid would not be available and conditional fee agreements are unlawful in Zambia. Second, there were not "sufficiently substantial and suitably experienced legal teams" in Zambia to handle effective litigation of this size and complexity, particularly against a well-resourced opponent like KCM. In considering this issue, Lord Briggs noted Coulson J's detailed examination of other environmental group claims before the Zambian courts, including apparent failings in case preparation (perhaps due to insufficient funding) which meant that save for a small minority the claimants were "almost routinely unsuccessful".

Key takeaways

The judgment will be of acute interest to multinationals seeking to balance the need to ensure their subsidiaries' operations are conducted safely and with respect for human rights with the risk of opening up parents to litigation in the jurisdiction of their headquarters. The Court of Appeal's decisions in Unilever and Shell had led many to take the view that, provided subsidiaries were themselves responsible for implementing group environmental and human rights policies, the fact that these were designed and applied at group level would not lead to parent company responsibility. But the Supreme Court's comments mean this can no longer be presumed to be the case.

Moreover, the confirmation that there are no special restrictions upon the circumstances in which a duty of care can be imposed upon a parent for its foreign subsidiaries' actions may pave the way for claims against parent companies in a broader range of circumstances than previously thought.

It is therefore likely that the best way to mitigate the risk of group claims of this nature will be for English-domiciled companies to conduct thorough due diligence, adopt and implement effective group-level policies and work with their subsidiaries to effectively mitigate risks in domestic and overseas operations.

On the other hand, the Supreme Court's confirmation that Zambia was the proper place for the claim may deter future claimants from coming to the English courts where the only connecting factor is the domicile of the relevant parent company. Moreover, the relevance of the availability of funding and appropriate legal expertise in claimants' home jurisdictions demonstrates the English courts' determination of jurisdiction questions may vary significantly depending on where the claim originates.


1 The other two recent Court of Appeal decisions in this area are HRH Emere Godwin Bebe Okpabi and others v. Royal Dutch Shell plc and another [2018] EWCA Civ 191 (Okpabi v. Shell) and AAA & Others v. Unilever PLC and Unilever Tea Kenya Limited [2018] EWCA Civ 1532 (AAA v. Unilever).

Dentons is the world's first polycentric global law firm. A top 20 firm on the Acritas 2015 Global Elite Brand Index, the Firm is committed to challenging the status quo in delivering consistent and uncompromising quality and value in new and inventive ways. Driven to provide clients a competitive edge, and connected to the communities where its clients want to do business, Dentons knows that understanding local cultures is crucial to successfully completing a deal, resolving a dispute or solving a business challenge. Now the world's largest law firm, Dentons' global team builds agile, tailored solutions to meet the local, national and global needs of private and public clients of any size in more than 125 locations serving 50-plus countries.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions