In this blog’s final post before 12KBW’s International and Travel team enjoy a well-earned break over the festive period, John Paul Swoboda decodes the Court of Appeal’s recent judgment in Limbu v Dyson Technology Ltd & ors [2024] EWCA Civ 1564. All that remains is for the Editor, on behalf of the whole team at 12KBW, to wish all of our readers and subscribers a very merry Christmas, a restful break over the festive period, and a prosperous and happy New Year. Thank you for your continued interest and support.
The judgment of Popplewell LJ in Limbu distils the law regarding forum non conveniens with aplomb. Popplewell’s LJ articulation of the law was made easier by the fact that the applicable principles were authoritatively stated by the House of Lords in The Spiliada [1987] AC 460 and have been clarified with ambiguities teased out in subsequent authorities, notably Lungowe v Vedanta [2019] UKSC 20 and Okpabi v Shell [2021] UKSC 3. It is well worth a read for those looking to deepen their knowledge of this area of the law.
The Claimants in Limbu allege human trafficking, forced labour, exploitative and abusive working and living conditions, detention, torture and beatings whilst working for the Dyson group. The Dyson Defendants (of whom there were three) argued England was forum non conveniens and the proper forum was Malaysia, where the alleged injustices occurred.
The Court of Appeal unanimously overturned the judgment of the judge below (who had found Malaysia to be the appropriate forum for the Claimants’ claims) finding he had made errors of law such that England was the appropriate forum.
The keys with which to unlock the decision are: the distinction of service in vs service out and the presumption of appropriate forum; the true nature of the claims which places the centre of gravity in England not Malaysia; and that there was, despite undertakings provided by the Dyson companies, a real risk the claimants would not be able to obtain substantial justice in Malaysia.
Service in vs service out
Two of the three Defendants were domiciled in England, one in Malaysia. For the English-domiciled Defendants (D1 and D2), the Claimants were entitled to serve in England (‘service in’ claims). The burden of proof reflects that entitlement to serve the Defendants “as of right” by requiring these Defendants to show Malaysia was clearly and distinctly a more appropriate forum. The other defendant (D3) was a Malaysian company but also part of the Dyson group. This was the ‘service out’ claim, where the burden is on the Claimants to show why England is clearly the appropriate forum.
The judge below had “failed to take any account” that D1 and D2 were domiciled in England and in so doing made a clear error of law; by failing to distinguish between the different positions of D1 & D2 and D3 the judge failed to acknowledge and weigh in the balance the fundamental difference in the position of the Defendants.
The centre of gravity
Popplewell LJ stated “The reality is that Dyson UK is the principal protagonist and Dyson Malaysia a more minor and ancillary defendant to the claim against D1 and D2.” This finding was a knife through the heart of Defendants’ position on forum as greater weight is given to those Defendants who are the major party or chief protagonist (as per JSC BTA Bank v Granton Trade Ltd [2010] EWHC 2577). As D1 & D2 were the English-domiciled Defendants, this moved the centre of gravity of the claim firmly to England. Once this factor was established, the Defendants’ arguments became more of an uphill struggle.
D1 & D2 were not, in other words, tactical anchor defendants used as a tool to enable the claim to be brought in England. In my view, this was demonstrated most clearly by the fact that the action was commenced against D1 and D2 alone with D3 only being added into the action later as a result of the defences and/or disclosure of D1 and D2. It was also telling that, irrespective of whether the claims were litigated in England or Malaysia, the defences were to be coordinated and conducted from England.
Access to justice
I found it somewhat uncomfortable to read that the Claimants would, according to the judge below, have “a reasonable and well-founded fear for their safety” if they gave evidence in Malaysia, such that they would have to give evidence remotely. This was, in my mind, a red flag that substantial justice may not be achievable. However, it was not this feature which Popplewell LJ focused on but rather the funding (or lack of it) in Malaysia which meant that the Claimants would not be in a position to bring a claim in Malaysia unless the Defendants agreed to fund disbursements and NGOs stepped up to meet any funding gap.
The conflict of interest of the Defendants (funding on the one hand, and fighting on the other) meant that the offer of undertakings were insufficient to sufficiently eliminate the risk of substantial injustice. Further, there was a real risk that NGOs would not fund the claims. There was, in other words, a real risk the Claimants would not obtain substantial justice if their claims were tried in Malaysia.
Following this decision by the Court of Appeal, it will be much harder for defendants to rely on undertakings in furthering their position in respect of forum. Popplewell’s LJ described the offered undertakings as “unprecedented” and suffering from “serious flaws”.