Martin Spencer J has rejected applications to strike out the claims of some 7,263 Malawian tobacco farmers brought against companies within the British American Tobacco group and Imperial Tobacco group.

The claims, under citation Josiya and Ors v British American Tobacco Plc and Ors [2021] EWHC 1743 (QB), are for negligence, conversion (of tobacco leaves), and unjust enrichment. The judgment has recently been uploaded to the Leigh Day website.

Kate Boakes of 12 King’s Bench Walk is instructed by Leigh Day on behalf of the Claimants.

The Claimants, many of whom are children, are Malawian citizens who all lived and worked on tobacco farms in the central and northern regions of Malawi. They overwhelmingly originate from the south of Malawi and are said to have been trafficked from their family homes to the tobacco farms.

The claims in tort and unjust enrichment are said to arise from the “unlawful, exploitative and dangerous conditions in which the claimants produced tobacco leaves” on the tobacco farms.

Those conditions are 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.

In summary, it is alleged that the Defendants facilitated, assisted, or encouraged such conditions in order to acquire tobacco leaves at the lowest possible cost and to maximise their profits from the sale of cigarettes.

The Defendants applied to strike out the claims. The basis for the application in a nutshell was that the pleadings were deficient, since the Claimants

issued these claims without any evidence to support the essential allegation that each of the individual Claimants grew tobacco leaves that were ultimately purchased by one of the defendants. It follows that, at present, no individual Claimant can sustain any claim (on any basis) against any of the defendants and the BAT defendants’ position is that these proceedings have been commenced on a fundamentally flawed basis and all of the claimants’ claims should be struck out.

Martin Spencer J rejected this argument. The starting point was that it was impermissible for the court to consider the evidence in support of the pleaded claim in relation to applications to strike out under CPR r. 3.4(2)(a):

As the authorities cited by Mr Hermer make clear, consideration of an application under CPR 3.4(2)(a) is confined to the coherence and validity of the claim as pleaded, and it is not permissible for the court to consider and weigh the evidence supporting the pleaded claim.

The Defendants’ suggestion that Leigh Day did not know if any given Claimant grew leaves supplied to any of the Defendants and that this meant that the allegations against them in the particulars of claim were baseless

does not follow at all and falls into the error identified by Mr Hermer QC in his submissions of failing to distinguish between the information required for a claim to be pleaded, supported by a statement of truth, and the evidence required to bring home at trial what has been pleaded.

It was, on the other hand, permissible for the court to look at the evidence when considering the Defendants’ alternative attempt to strike out the claims under CPR r. 3.4(2)(b) as an abuse of process. Martin Spencer J summarised the issue:

The fundamental question to be considered in this case is whether, on the information available to them, the claimants had any business pleading the nexus allegation in the way that they did as a primary fact rather than as an inference (together with setting out the basis for the inference). This question incorporates whether and when it is proper to sign a statement of truth attesting to the claimants’ belief that the contents of the Particulars of Claim are true when, as submitted by the defendants, the signatory to the statement of truth, here Mr Day, did not have the necessary information or foundation for such belief but merely a basis for asserting that the Particulars of Claim, and in particular the nexus allegation, might be true.

The authorities showed that the issue was

whether the claimants have a firm belief in the truth of the nexus allegation and whether there is sufficient justification for that belief.

The Claimants had produced statistical reasoning set out in a witness statement in support of their belief that, in respect of any one of the individual Claimants who grew tobacco acquired by a certain buyer, it was more likely than not to have been acquired by the Defendants.

Although the statistical reasoning process which has led Mr Day to believe in the truth of the nexus allegation may be erroneous, I am in no position to decide that and make a judgment in that regard. Nor would it be appropriate for me to do so on an application of this nature.

Crucially, the statistical reasoning meant that was not a case in which the nexus with any individual Defendant was ‘wholly speculative’. On the contrary,

there is a clear pathway to be seen for the claimants’ tobacco leaves to end up in the hands of the defendants and that is sufficient to take the case out of the “wholly speculative” category.

Although the Claimants had chosen to allege that the Defendants’ involvement would be proved as a matter of primary fact (rather than an inference), they did not need specific proof in order to do this:

There is no requirement, though, for the claimants to have possession of that documentary evidence at this stage in order to be able to plead the nexus allegation in the way that they have. As Mr Hermer submitted at the outset of his argument, and as I accept, what is required in order to plead a matter and sign a statement of truth at the start of proceedings, and what is required to prove an allegation at trial are separate and distinct things and an elision of these two fundamentally different concepts lies at the basis of the misconception which has led to the making of these applications.

On this basis, the strike out applications were dismissed. The claims will therefore continue.

James Beeton Cross-Border

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