Potential claimants warned in wake of silicosis class actions scramble
Kenya is providing a dire warning for former mine workers and the various legal teams planning historic silicosis class actions against gold mines in South Africa.
An ugly scramble is under way to claim money from the British government for alleged torture, forced labour and illegal detainment of suspected Mau Mau rebels in the 1950s, with allegations of fraud, client poaching and dodgy legal practices surfacing in tandem with a first settlement by the British government last week.
Mau Mau cases for compensation against the UK have effectively been in the works since 2003, when it first became legal in Kenya to organise societies of former Mau Mau fighters.
After a long legal battle, the UK’s Foreign and Commonwealth Office on June 6 announced that it was settling the most advanced case with 5 228 Kenyan claimants out of court for £13.9 million (R215 million) and an additional £6 million to cover their legal costs. That works out to about R42 000 per claimant.
The claimants’ UK law firm, Leigh Day & Co (LDC), is also one of the firms leading a class action application for silicosis damages from South African gold mines – as well as parallel cases in the UK. Silicosis lawyers are currently competing for the right to sue Anglo American – the largest target in a legal campaign against 30 companies.
Richard Spoor Incorporated, the firm driving the largest silicosis case, has already encountered individuals fraudulently trying to “sell” claimants or charge sick former mine workers to add them to class actions.
The Kenyan developments demonstrate the pitfalls of competing attempts to litigate the same large compensation cases, a risk run in South Africa where several law firms are pursuing overlapping and competing silicosis cases.
The silicosis cases are similar to the Mau Mau cases in that they have involved competing legal teams mobilising thousands of clients, most of whom are old and ill, to claim compensation for historical injustices spanning back several decades.
At community meetings in the Eastern Cape earlier this year, one of the silicosis lawyers, Richard Spoor, warned potential claimants against swindlers and unscrupulous rivals.
“It is very likely that as the case continues, more and more lawyers will try to join in, in the hope that they can get something for themselves. Be very careful of lawyers who make promises of success or who ask you for money,” reads the Q&A sheet handed out at these meetings.
In Kenya, rival firms preparing their own Mau Mau cases are now crying foul and have managed to win the support of the Law Society of Kenya (LSK) in what looks like a possible rival claim on the settlement money.
The CEO of the LSK, Apollo Mboya, this week wrote to the British High Commissioner in Kenya in effect asking the British to scrutinise LDC for fraud in relation to the disbursement of the cash.
Following complaints from unnamed lawyers, the LSK took the unusual step of requesting that LDC and two other firms all submit lists of all their Mau Mau clients so that it could adjudicate whom they actually represent.
A firm called Tandem Law also has a Mau Mau case before UK courts, with about 8 000 claimants, and another firm, GT Law, has 700 claimants on whose behalf it too is planning a case.
“Unless the authenticity of the list of claimants is verified and crosschecked by other lawyers involved, the negotiated settlement may lead to fraud,” Mboya said in a statement.
The LSK also lashed out at the size of the settlement LDC accepted from the UK, saying that it was “too negligible” compared to precedents set in similar cases.
Among the allegations raised by the LSK are that unscrupulous and possibly fake law firms have been collecting fees from potential claimants, irregularly transferring Mau Mau clients between themselves and outright lying to their clients.
One of the rival law firms, Tandem Law, also called the LDC settlement “very modest”.
Martyn Day of LDC told City Press they would not provide the list requested by the LSK as that would contravene their duty of confidentiality towards clients.
“That is not least when each of them is receiving an amount of money that in Kenya could make them targets,” he said in response to emailed questions.
“Each client agreed to the proposed deal. That is good enough for me.
“Tandem and other law firms are obviously hoping to follow on our success by bringing more cases”, says Day.
“As far as I can see there is a lot of smoke without much fire … They need perhaps to do less shouting in the media and get on with preparing a case that is irresistible.”
The settlement money will be paid to LDC and then transferred into each of the claimants’ 5 228 bank accounts, “which they will need to open if they do not have one already”, he says.
Martyn says LDC is trying to avoid the “grief” it had after winning a £30 million settlement in the Ivory Coast in 2009. It had sued the oil-trading behemoth Trafigura on behalf of 30 000 Ivorians who, allegedly, were exposed to toxic waste dumped all over Abidijan by Trafigura’s contractors in 2006.
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