AAA and others v Unilever Plc and Unilever Tea Kenya Ltd [2017] EWHC 371 (QB); international personal injury & justiciability

In this post, Philip Mead of 12 King’s Bench Walk considers the third decision in a series of African cases where complex group action personal injury claims have been sought to be litigated in the English Courts, following Lungowe v Vedanta Resources Plc [2016] EWHC 975 (TCC) (heard by Coulson J) and Okpabi v Royal Dutch Shell [2017] EWHC 89 (TCC) (heard by Fraser J).

The Claims

The Claimants were Kenyan nationals who were the victims of inter-ethnic violence carried out by armed criminals on the Plantation (being a tea plantation operated by the Second Defendant, a Kenyan registered company) after the Presidential election in Kenya in 2007. The First Defendant, an English registered company was the ultimate holding company of the Second Defendant.

The Claimants averred that the First Defendant was in breach of a duty of care it owed the Claimants to keep the Claimants safe from the risk of attack in relation to post-election violence, which, it was alleged foreseeably was likely to happen as between different ethnic groups after the result of the election was announced.

The First Defendant applied to stay or alternatively to dismiss the claims, and the Second Defendant challenged the jurisdiction of the Courts under CPR Part 11.

The Judge followed the approach of Coulson J in Vedanta. The following issues in the judgment are of interest to practitioners involved in international personal injury claims: (1) granting a stay against an English domiciled company on the basis that the claim is inherently weak or on case management grounds; (2) whether there was a real issue to be tried between the Claimants and the First Defendant; (3) was it reasonable for the issue between the First Defendant and the Claimants to be tried in England and Wales; (4) whether the Second Defendant was a necessary and proper party to the Claimants’ claims against the First Defendant; (5) whether the courts of England and Wales are the proper forum for the claim against the Second Defendant; (6) whether the courts of England and Wales are the appropriate forum.

 

(1) Staying proceedings against an English company: Applying the ECJ case of Owusu v Jackson [2005] QB 801, and following the approach adopted by Coulson J in Vedanta, the Judge held that there was no power to stay proceedings on grounds of forum non conveniens, and that there was no basis to stay proceedings on case management grounds (any challenge to the weakness of the claim against the First Defendant was to apply to strike it out: judgment, para 72).

(2) A real issue to be tried as between the Claimants and the First Defendant: The proper law of the claims was accepted as being Kenyan law. That law treated English law as being very persuasive, and would have applied the three-stage test in Caparo Industries v Dickman. Applying that test, the Judge held against the Claimants. The damage suffered was not foreseeable by either the Second or First Defendants, in that it was not foreseeable that there was a risk of post-election violence on the plantation as a result of a general breakdown in law and order where the police would fail to protect the Claimants when it did break down (judgment, para 95). On the issue of proximity, the Judge held, with some hesitation, that there was sufficient evidence before the Court to find that the First Defendant arguably exercised a sufficient degree of control over the Second Defendant to ground a duty. However, overall, given the nature of the pleaded claim, to keep the Claimants safe, i.e. to procure a result, the Judge held that the Claimants had failed to establish that there was a real issue as against the First Defendant (judgment, para 111). Had the Judge been required to do so, she would have found that the Claimant’s argument in relation to limitation was made good, that the Claimants were within time under Kenyan law (judgment, para 123), or that the test for undue hardship under section 2(2) of the Foreign Limitation Periods Act 1984 was made out (judgment, para 124).

The Judge then held for similar reasons that the claim against the Second Defendant did not have real prospects of success (judgment, paras 125-127).

(3) The reasonableness of trying the issues between the Claimants and the First Defendant in England and Wales: Applying the decision of the Court of Appeal in the Erste Bank case [2015] EWCA Civ 279, the Judge held that it would have been reasonable to try the claims against the First Defendant (assuming there were real prospects of success).

(4) Was the Second Defendant a necessary and proper party: Had there been a real issue to be tried as against the First Defendant, the Judge would have held that the claims against the First and Second Defendants were sufficiently closely connected to permit joinder (judgment, para 133).

(5) Whether the Courts of England and Wales were the proper forum for a claim against the Second Defendant: Absent the existence of the claims against the First Defendant, the Judge would have held that the Courts of Kenya would have been the appropriate forum to bring claims against the Second Defendant (judgment, para 149). However, the existence of the claim against the First Defendant would have made the Courts of England and Wales more appropriate to hear any claims against both Defendants (judgment, para 150).

(6) Whether the Courts of England and Wales were the appropriate forum for a claim against the Second Defendant: In addition, the Judge held that, had she been wrong on the issue of the appropriate forum, she would have held that there was a real risk that the Claimants would not receive substantial justice in Kenya. The substantive basis for such a ruling referred to the risks in the particular case, which included the risks of intimidation of witnesses in Kenya and attempts to influence witnesses, judicial corruption and the risk of files going missing, which could prejudice the effectiveness of anonymity orders. The Judge also held that in the absence of a functioning legal aid system and the unlawfulness of conditional fee agreements that the Claimants would not be able to afford to bring the claims before the Kenyan Courts.

Conclusion: The Claimants’ claims failed on the merits. Had the claims had sufficient merit, the Claimants would have been entitled to bring their claims before the English Courts.

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