A heady brew - cross border litigation and Scottish group proceedings

One of the three ongoing group proceedings, or “class actions”, in Scotland is brought on behalf of around 1,300 people (“the claimants”) who worked for a Scottish registered company (“the company”) as tea pickers on Kenyan tea plantations.

The claimants allege musculoskeletal injuries said to arise from unsafe working practices, conditions and systems of work at the plantations over several decades. 

The latest judicial opinion in this litigation was given by Lord Weir on 11 July 2023, link here. While this opinion deals with certain case-specific issues and competing litigation in Kenya appears to be ongoing, two aspects of the opinion are of note on issues that may arise in any cross-border litigation - jurisdiction, on whether the Scottish court can hear the case and convenient forum, on whether, if so, the Scottish court should hear it. 

Jurisdiction - can the Scottish court hear the litigation? - and the difference between jurisdiction and applicable law   

Where injury is claimed as caused by a civil wrong, the claimant may ordinarily sue the alleged wrongdoer in a Scottish court if, either, the wrong happened in Scotland or the alleged wrongdoer is domiciled, or habitually resident, in Scotland. A company is domiciled where it has its registered office or place of business. So, it was agreed in the Kenyan tea pickers litigation that, all other things being equal, the claimants could sue in Scotland because, on first analysis, the Scottish court has jurisdiction to hear the case because the company is domiciled in Scotland through their registered office there.   

This does not, though, mean that Scots law applies to the merits of the case. On the contrary, the ordinary rule is that the applicable law is the law of the place where the wrong is said to have happened. A Scottish court hearing the merits of this litigation would, therefore, apply Kenyan law. Expert evidence from suitably qualified Kenyan lawyers would be needed on what that law is, with the Scottish court then making factual findings on that and applying those to determine the merits of the case.

On jurisdiction, the company’s position was that the default domicile rule for the Scottish court to be able to hear the case had been ousted. It is possible for parties to contract out of the jurisdiction rules. However, to successfully contract out, an agreement on that must be clear and unequivocal and, where there is dispute, must be proven by the party seeking to oust jurisdiction. In the tea pickers litigation, the first instance opinion concludes that there was insufficient evidence of any agreement binding the claimants to make any claims under certain Kenyan legislation. Further, that legislation did not, of itself, require the claimants to make any claims under it, to the initial exclusion of all courts, because there was insufficient evidence that the injuries claimed were covered by it. 

So, the claimants could have litigated in either Kenya or Scotland. The next question was should the Scottish court hear it.   

(In)convenient forum - should the Scottish court hear the litigation?

The doctrine of “forum non conveniens”, literally “inconvenient forum”, means that even if a Scottish court can hear a case, it should decline to do so on the application of a party if there is a court in another country where “the case may be tried more suitably for the interests of all the parties and for the ends of justice”. The question is really one of appropriateness rather than convenience. Any party asserting this doctrine must first show that the other court would be a “clearly or distinctly more appropriate” place for the litigation in terms of connection to the case and any other relevant factors. If the other court is such a place, then issues around the “ends of justice” are considered in determining decisions.

In the tea pickers litigation, the company succeeded in proving that a court in Kenya was more appropriate than a court in Scotland, but the claimants then succeeded on issues of justice such that the Scottish court will continue to deal with the litigation.

In the analysis of the judge at first instance, a court in Kenya was more appropriate because -

• All the claimants live in Kenya.
• Kenya is where the alleged harm was done.
• Although the company have a registered office in Scotland, they have no other operations, factories or discernible business there.
• Investigations will be needed in Kenya and there could be legal or practical problems for any Scottish court-ordered investigations there.

The issues of justice that led the first instance judge to refuse the company’s application for the Scottish court to declare itself “forum non conveniens” were -

• The claimants are substantially illiterate and poor.
• Kenyan law on funding arrangements for litigation meant that the claimants would likely not be able to fund litigation in Kenya.
• There are few lawyers in Kenya with the skills and resources to handle multi-claimant litigation of the kind involved here. Such lawyers as might be able to do such work would likely require payment of fees and disbursements as they occurred. 

These first instance decisions on jurisdiction and forum could be subject to appeal. This possibility aside, a procedural hearing is now being set to determine what should happen next in the litigation in Scotland.