Thursday’s Court of Session’s rejection of the defendant’s forum non conveniens objection to jurisdiction in Hugh Campbell KC v James Finlay (Kenya) Ltd [2023] CSOH 45 means the class action lest appeal can now go ahead . More than 700 workers are suing James Finlay Kenya Ltd (despite its name, a Scotland-incorporated company) under a class action suit. As BHRRC summarise, the former tea pickers claim they suffered serious neck and back injuries due to the poor working conditions on the company’s tea farms in Kericho.
Scotland is the home of forum non conveniens and the case is important with a view to the future direction of the doctrine.
Lord Weir first of all dealt at length and with the help of expert evidence on Kenyan law, with a number of issues under Kenyan law, essentially suggesting exclusive jurisdiction for the Kenyan courts as a result of choice of court in the employment agreements and /or by implication of mandatory Kenyan collective labour law. Eventually he rejects that suggestion and then deals more succinctly [146 ff] with the forum non challenge, which requires defendants show it is clearly and distinctly more appropriate that the group members’ claims be heard in Kenya.
[150] He is unpersuaded on the pleadings and the evidence led that there are significantly complex and disputed issues of Kenyan law (which he holds at the level of general duties is similar to Scots common law) that would require to be resolved in dealing with the group members’ substantive claims.
Other arguments cited pro forum non, are [151]
that the proceedings were likely to raise issues which required an understanding of Kenyan culture, behaviour and custom.
At an important, though practical level, investigations would require to be undertaken locally.
There was uncertainty over the enforceability of any order made by the Scots court concerning the inspection of property, including judicial accessibility for site inspections.
It was unsatisfactory, from the point of view of assessing credibility and reliability of evidence, that interpreters would be required to translate
evidence, the nuances of which could be lost.
The requirement for translation would inevitably prolong proceedings.
Moreover, there was also no certainty that the evidence of numerous witnesses to fact could be heard remotely.
The attitude of the Kenyan state had to be considered and the correct processes followed. (The evidence of witnesses heard remotely from Kenya could only be granted without objection by the Kenyan state).
[152] Kenya is held clearly to be an appropriate forum. Again, Gleichlauf (Kenyan courts applying their own law, the lex causae) was not considered to be very relevant. Other issues though, were: The group members all live in Kenya. They all sue on the basis of having sustained injury on tea estates in Kenya as a result of the defenders’ breach of duty there. The defenders, although retaining a registered office in Scotland, have no other operations, factories or other discernible business in Scotland. They operate as a branch in Kenya. Senior officers are all based, and live, in Kenya. The circumstances giving rise to the claims, including the processes said to have given rise
to injury, will inevitably require to be investigated in Kenya. Moreover, the defenders have raised practical but nonetheless important issues about the extent to which orders normally pronounced as a matter of routine (eg specifications of documents and property, and the taking of evidence remotely) could be enforced in Kenya.
[153] Yet eventually the balance tilts in favour of Scotland: the judge holds there is cogent evidence of a material risk that the group members may not obtain justice if they are obliged to litigate their claims in Kenya. Lord Weir conducts that exercise at a very practical level, not as a systemic critique of the Kenyan legal system:
“(i) The group members’ duties involve tea harvesting on the defenders’ tea estates. The evidence, derived from the specimen contract, was that tea harvesters earned about Kshs 11,616/=. Although I was not furnished with a direct sterling equivalent Mr Nderitu’s evidence, which I accept, was that Kshs 15,000 was worth about £100 at current rates (March 2023). …a medical report might cost around Kshs 10,000. That…would suggest that a tea harvester who was looking to source their own medical report for litigation purposes would have to spend an entire month’s salary to meet the cost of doing so.
(ii) Tea harvesters working on the defenders’ tea estates were afforded
accommodation but required to purchase their own food. Their
remuneration can properly be described…. as subsistence pay.
(iii) It is probable that many of the group members cannot read or write. …
(iv) It is unlikely that any non-governmental organisation in Kenya would be in a position to fund litigation of the nature and character of these proceedings in Kenya.
(v) Although a Legal Aid Act came into force in Kenya in 2016 it is not yet fully implemented and the group members are unlikely to be able to secure legal aid and assistance in representation to advance their claims in Kenya.
(vi) Contingency fees are prohibited under Kenyan law and group members would be potentially liable for adverse awards of costs.
(vii) Although there are provisions within the Kenyan Civil Procedure Rules 2010 which permit a group’s interests to be canvassed through a single pursuer or defender …, there are no provisions equivalent or
comparable to the rules governing group proceedings in Scotland. The group members’ claims do not fall into any of the limited categories of claim which would allow for the pursuit of such proceedings, there being no formal procedural basis to enable that to be done.
(viii) There are few lawyers in Kenya who would have the skills and resources to handle mass litigation of this kind. For those larger farms (sic) which could theoretically do so, there are likely to be a commercial disincentives because of (i) the likelihood that such firms would be looking for payment of fees and disbursements as and when they occurred, and (ii) the commercial undesirability of litigating against substantial commercial entities in Kenya.
(ix) In the foregoing circumstances, it is unlikely that the group members would be able to prosecute their claims, individually or collectively and whether or not represented, to a conclusion and to secure justice.”
This is an important finding and it emphasises the importance of practical achievability of properly bringing a claim (that is an echo of Lord Briggs’ ‘substantial justice’ considerations in the forum non conveniens part of UKSC Vedanta, which is not referred to in current judgment).
Geert.
gavc law - geert van calster 
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