On Tuesday the Court of Appeal refused permission to appeal the decision of Stewart J in the first judgment on the merits in the Kenya Emergency Group Litigation (Kimathi and Others v Foreign & Commonwealth Office  EWHC 2066 (QB)). We wrote about the earlier decision here.
The permission to appeal decision is available on BAILII under the heading Kimathi and Others v Foreign & Commonwealth Office  EWCA Civ 2213. In summary:
- The judge had concluded that there was no good reason for the delay in bringing the action. But he went on to find that, even if there had been a good reason, on balance the case still could not be fairly tried. His conclusion in that respect could not be impugned .
- There was no need for the judge to identify a specific date by which the action should have been brought in order to deal with prejudice to the defendant. What was crucial was to ‘consider the position as it is now’ .
- The judge was justified in finding that the loss of documents and potential witnesses over time inevitably and seriously affected the cogency of the evidence available .
- The fact that the claim was brought against a background of allegations of abuse requiring scrutiny or investigation did not affect the core issue of prejudice .
- A final allegation that the judge had not been even-handed was simply unjustified .
Ultimately, the court determined that the claimant ‘cannot get away from the fact that the judge had a discretion to exercise and that this court will not interfere with that exercise of discretion unless the judge has misdirected himself in law, taken into account irrelevant matters, failed to take account of relevant matters or has made a decision which has exceeded the generous ambit within which reasonable disagreement is possible’.
The decision provides a harsh reminder of the difficulty of appealing exercises of a judge’s discretion under s. 33 Limitation Act 1980. The potentially significant implications of this decision for the viability of the remainder of the thousands of claims in the Kenya Emergency Group Litigation remain to be seen.
An interesting aspect of Kimathi and Others v Foreign & Commonwealth Office  EWHC 2066 (QB) is how thoroughly it confirms that the past is a foreign country. Britain’s past comprises many foreign countries, once part of its Empire. The Kimathi litigation (also known as the ‘Mau Mau litigation’, after the Mau Mau rebellion that was instrumental in Kenya’s independence movement) has come probably at the only time it could come in these postcolonial days, but it has come too late to be suitable for the forensic process that is civil litigation.
Members of 12 King’s Bench Walk’s International & Travel team have been instructed at various points throughout the course of this litigation by the Claimants, the FCO, and Intervening Parties. This post considers the implications of Stewart J’s first judgment on the merits and assesses the suitability of the civil litigation process for determination of the issues raised. Continue reading First Judgment on the Merits in the Kenya Emergency Group Litigation (TC34)
This blog is by Lois Aldred of 12 King’s Bench Walk.
The Court of Appeal recently handed down its judgment in AAA & Others v Unilever PLC and Unilever Tea Kenya Limited. This is the latest in a series of Court of Appeal considerations of the extent of corporate liability of parent companies for acts or omissions pertaining to the operations of subsidiaries.
The Claimants were employees of Unilever Tea Kenya Limited (‘UTKL’) who lived and worked on UTKL’s tea plantation in the southern Rift Valley of Kenya. They claimed against both Unilever and UTKL in tort for failing to protect them from the harm they suffered as a result of inter-tribal violence in the immediate aftermath of the 2007 Kenyan presidential election. Continue reading AAA & ORS v (1) UNILEVER PLC (2) UNILEVER TEA KENYA LTD (2018)  EWCA Civ 1532: the corporate veil remains a tightly woven garment
This blog is by John-Paul Swoboda of 12 King’s Bench Walk.
Chandler v Cape  EWCA Civ 525 was described in the Economist as “A little-noticed court case with big implications”. That was because it was the first time a parent company had successfully been sued for, as the Economist put it, the sins of their subsidiary. The prediction that there would be big implications appears, with the Lungowe case, to be coming to pass. The Lungowe case concerns 1,800 claimants, all of them Zambians alleging personal injury and property damage in Zambia whilst in the employment of a Zambian company (‘KCM’) due to an alleged toxic discharge from KCM’s mine into the water table. In other words, the Lungowe case concerns the export of huge group litigation, from a country with little access to justice, to the English Courts. The export of this group litigation was made possible, in this author’s opinion, by the Court of Appeal’s decision in Chandler and the European Court of Justice’s decision in Owusu v Jackson (Case C-281/02)  QB 801 which allows claimants to anchor jurisdiction in English courts where one of the proposed defendants is domiciled in England. In this case the first defendant or ‘Vedanta’ was the anchoring defendant and the parent company of KCM. Continue reading Lungowe & Ors v Vedanta Resources Plc v Konkola Copper Mines Plc  EWCA Civ 1528: Anchoring defendants, and suing the parent for the sins of their subsidiaries
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  EWHC 975 (TCC) (heard by Coulson J) and Okpabi v Royal Dutch Shell  EWHC 89 (TCC) (heard by Fraser J). Continue reading AAA and others v Unilever Plc and Unilever Tea Kenya Ltd  EWHC 371 (QB); international personal injury & justiciability
This post is by Aliyah Akram of 12 King’s Bench Walk.
The case involved 42,500 residents of the Niger Delta, from two different communities, who sought to bring a claim in the High Court for damages arising from environmental pollution caused by, they alleged, oil spills from the Defendants’ pipelines.
The claim was brought against two defendants. Shell Petroleum Development Company of Nigeria (“SPDC”), the Shell company responsible for the oil operations and Royal Dutch Shell (“RDS”) its ultimate parent company. Continue reading His Royal Highness Okpabi v Royal Dutch Shell Plc, Lucky Alame v Royal Dutch Shell Plc  EWHC 89 (TCC); Jurisdiction and international environmental group actions