Josiya ea v BAT ea (tobacco labourers’ exploitation). On documentary proof of link between claimant and defendant.

Josiya & Ors v British American Tobacco Plc & Ors [2021] EWHC 1743 (QB) is the first shot in an important business and human rights case, accusing the defendants of being responsible for working conditions said to include the widespread use of unlawful child labour, unlawful forced labour and the systematic exposure of vulnerable and impoverished adults and children to extremely hazardous working conditions with minimal protection against industrial accidents, injuries and diseases.

I briefly want to flag the 25 June order by Spencer J for it highlights a point I often make when teaching, or sharing my practice experience on, strategic and public interest litigation: that most of these cases are won not by an eloquent speech on grand principles, delivered in Hollywood fashion. Rather, by the dogged determination of invested lawyers, with a keen eye for detail across civil procedure (including standing, statutes of limitation, service, timely filing of procedural , third party and other ways of financing, tort and other applicable law).

The order at issue dismisses an application for strike-out which was essentially based on an alleged lack of documentary proof of claimants’ link to the defendants, leading to claim said to be an abuse of process.

Brussels IA applies to the claim (claim form was filed on 18 December 2020, the particulars of claim – POC on 12 January 2021): claimants aim to avoid forum non conveniens although of course Articles 33-34 might still be raised. Locus causae is said to be Malawi law [19]. Claimants concede [23] they do not at this stage have documentary evidence that categorially links each individual Claimant to one or more of the Defendants or companies within the Defendants’ corporate groups. They tried to obtain this unsuccessfully in pre-trial disclosure.

Claimant’s counsel, Richard Hermer QC, successfully argued a distinction [41]  between what is required for a party to plead the case; and what is required for a party to prove the case at trial.

Held: the claim form without specific identification of the link between individual claimants and specific defendants is not an abuse of process under the circumstances. An application for disclosure may and must be prepared.

Geert.

European Private International Law, 3rd ed. 2021, Chapter 7.

Begum v Maran. A hopeful Court of Appeal finding on duty of care; however open issues on its engagement with Rome II’s environmental heading.

I am late in reporting  Begum v Maran (UK) Ltd [2021] EWCA Civ 326, in which the Court of Appeal rejected an application for strike-out. I reported on the High Court judgment here and I should add I am instructed for claimant in the case. Oliver Holland, the lead Leigh Day solicitor in the case, discusses its implications together with Rachel Bonner (who was led by Richard Hermer) here.

Coulson LJ held that it is at least arguable (reminder: the specific action that was being discussed was an application for strike-out) that Maran does have a duty of care. His analysis essentially leans heavily on the fact that Maran availed itself of a disposal route, the consequences of which it was much aware of. It is clear that the well-known Bangladesh route to escape health, safety and environmental standards for the dismantling of ships, is questionable under the Basel Convention on Hazardous wastes and their disposal, and that shipowners have been using privity of contract in an attempt to shield themselves from any liability for consequences which are neither unexpected nor infrequent.

Others have written on the duty of care issue and I will focus on the A7 Rome II discussion: the lex specialis for environmental damage – on which I have a paper forthcoming (but to find more time!).  At 78 ff Coulson LJ firstly links the requirement of causality (the use of the flimsy ‘arising out of’) to the non-contractual obligation claimed (here: corporate duty of care), rather than the one immediately following the damage (here: negligence, recklessness causing death). That duty of care does not, it was held, ‘arise out of’ environmental damage. [82]: ‘In essence, it is the duty to take all reasonable steps to ensure that the sale of the vessel for demolition purposes did not endanger human life or health. That duty did not arise out of environmental damage; it had nothing to do with environmental damage at all. It arose out of the complete absence of workplace safety.’ And at 86: ‘even if the court had to consider whether the death (rather than the duty) arose out of environmental damage, the result would be the same…the death arose out of the absence of safe working practices and, in particular, the absence of a safety harness.’ Support is found in scholarly sources suggesting a narrow interpretation of A7; other sources are not discussed (despite having been submitted) and I continue to be convinced such limiting interpretation is not supported by the travaux. Males J, in his mostly concurring opinion, agrees that the last thing on A7 is far from said although he, too, holds that A7 is not engaged in casu.

Lord Justice Coulson obiter considers locus delicti commissi (which would be  the alternative lex causae under A7) and at 91 succinctly holds (pro memoria: obiter) that this would not have been England. There is authority I would suggest for the opposite finding and the judge’s interpretation of Arica Victims, I submit,  leaves room for discussion: at 91 he correctly refers to the Ovre Norrland Court of Appeal having pointed to ‘key decisions’ having been made in Sweden. These to me seem present in current case, too (and here: located in England).

At 110 ff the ordre public argument under A26 Rome II, which could displace the shorter statute of limitation of the Bangladeshi lex causae, for the longer English one, is succinctly dismissed as not meeting A26’s high hurdle. This leaves a narrower (and perhaps curiously indirect) ‘undue hardship’ argument under the E&W Foreign Limitation Periods Act 1984 to be discussed as a preliminary issue at the remanded trial in the High Court.

A most relevant case, also highlighting the many unresolved issues under A7 Rome II.

Geert.

EU Private International Law, 3rd ed. 2021, para 4.54 ff.

Suing ‘Norsk Hydro’ in The Netherlands. No engagement it seems of Article 33-34 BIa ‘from non conveniens light’.

A quick note on the suit in The Netherlands against “Norsk Hydro” of Norway, for alleged pollution caused by aluminium production in Brasil. No court decisions or orders are available as yet hence I write simply to log the case. I have put Norsk Hydro in inverted commas for the suit really is against Norsk Hydro subsidiaries incorporated in The Netherlands, who are said to control the Brazilian entities. The jurisdictional basis therefore is A4 BIa. As far as the reporting on the case  indicates, there seems little likelihood of A33-34 BIa’s forum non conveniens light making an appearance seeing as no Brazilian proceedings are reported to be underway which could sink the Dutch proceedings like the High Court did in Municipio de Mariana. That is not to say of course that the defendants might not discover some.

Geert.

EU Private International Law., 3rd ed. 2021, Heading 7.3.1.

High Court declines jurisdiction in Municipio de Mariana. An important (first instance) #bizhumanrights marker.

Update 27 July 2021 the Court of Appeal today granted the CPR 52.30 application and has given permission to appeal.

Update 10 May 2021 the Court of Appeal have agreed to hear our application to challenge the refusal for PTA.

Update 31 03 2021 the Court of Appeal have confirmed refusal to appeal in an order which fails to engage properly with inter alia the A34 issues.

Update 1 February 2021 Turner J last week refused permission to appeal (which can now still be taken to the Court of Appeal itself).

I am instructed for claimants in the case hence my post here is a succinct report, not a review and it must not be read as anything else.

Turner J yesterday struck out (not just: stayed) the case against the companies jointly operating the facilities that led to the 2015 Brazilian dam break and consequential human and environmental loss in Município De Mariana & Ors v BHP Group Plc & Anor [2020] EWHC 2930 (TCC). I reported on the case before here.

Eyre J’s earlier Order had identified the threefold jurisdictional challenge: 1. Forum non conveniens for non-EU defendants; 2. Article 34 Brussels IA for the EU-based defendants; 3. Abuse of process, case management for both.

In his judgment Turner J makes abuse of process the core of the case, hinging his subsequent obiter analysis of forum non and of Article 34 on his views viz abuse. At the centre of his abuse analysis is his interpretation of AB v John Wyeth & Brother (No.4), also known as the benzodiazepine litigation, with the points he takes from that judgment (even after the subsequent CPR rules wre issued) summarized at 76.

At 80 ff is a discussion (see e.g. my earlier review of Donaldson DJ in Zavarco) on the use of case-management powers, including abuse, against EU-domiciled defendants post CJEU Owusu (the ‘back-door analogy per Lewison J in Skype technologies SA v Joltid Ltd [2009] EWHC 2783 (Ch) ).

At 99 ff Turner J pays a lot of attention to the impact of accepting jurisdiction on the working of the courts in England, discusses some of the practicalities including language issues, and decides at 141 in an extract which has already caught the attention of others, that ‘In particular, the claimants’ tactical decision to progress closely related damages claims in the Brazilian and English jurisdictions simultaneously is an initiative the consequences of which, if unchecked, would foist upon the English courts the largest white elephant in the history of group actions.’

At 146 ff follow the obiter considerations of the remaining grounds, Article 34 Recast, forum non conveniens and case management stay. On Article 34 viz BHP Plc, the issue of ‘relatedness’ is discussed with reference of course to Euroeco and the tension between that case and Privatbank, as I flag ia here, holding at 199 in favour of Privatbank as the leading authority (hence focus on desirability of hearing cases together rather than on practical possibility). On relatedness, Turner J does not follow the approach of either Zavarco or Jalla, both of course first instance decisions.

At 206 Turner J takes the instructions of recital 24 Brussels Ia’s ‘all circumstances of the case’ to mean including circumstances which would ordinarily be part of a forum non consideration, despite Owusu, and at 231 Jalla is distinguished (at least practically; Jalla is not authority for the judge here) and i.a. at 221 Turner J lists his reasons for allowing an Article 34 stay (again: these are obiter views). As already noted, these echo his findings on abuse of process.

The forum non conveniens analysis viz BHP Ltd at 235 ff, applying Spiliada, delivers inter alia on an inherent implication of Lord Briggs’ suggestions in Vedanta: that a commitment of defendants voluntarily to submit to the foreign alternative jurisdiction, hands them the key to unlock forum non. At 241: ‘In this case, both defendants have offered to submit themselves to the jurisdiction of Brazil. Thus the force of any suggestion that there may be a risk of irreconcilable judgements against each defendant is attenuated.’

Conclusions, at 265:

(i) I strike out the claims against both defendants as an abuse of the process of the court;

(ii) If my finding of abuse were correct but my decision to strike out were wrong, then I would stay the claims leaving open the possibility of the claimants, or some of them, seeking to lift the stay in future but without pre-determining the timing of any such application or the circumstances in which such an application would be liable to succeed;

(iii) If my finding of abuse were wrong, then I would, in any event, stay the claim against BHP Plc by the application of Article 34 of the Recast Regulation;

(iv) If my finding of abuse were wrong, then I would, in any event, stay the claims against BHP Ltd on the grounds of forum non conveniens regardless of whether the BHP reliance on Article 34 of the Recast Regulation had been successful or not;

(v) If my findings on the abuse of process point were wrong, then a free-standing decision to impose a stay on case management grounds would probably be unsustainable.

Appeal is of course being considered.

Geert.

(Handbook of) European Private International Law, 2nd ed. 2016, Chapter 8, Heading 8.3.

3rd ed. forthcoming February 2021.