Kenyan Tea Pickers class action: a further twist in the tale

In the latest development in one of the first class actions to have been launched under Scotland's Group Proceedings rules, the Scottish civil appellate court has ruled that the proceedings are to be paused until the members of the group have first pursued their claims under a no-fault workplace accident compensation scheme in Kenya.

As we wrote in January 2022, a group of tea pickers who claim to have been injured while employed in Kenya by James Finlay (Kenya) Ltd ("JFKL"), a company which was incorporated in Scotland, were given permission to bring a class action in Scotland's Court of Session. JFKL appealed against that decision, arguing that there was insufficient factual similarity between the claims to allow them to be brought under a single class action, with "musculo-skeletal injury arising from employment" said to be too wide a description to meet the relevant test of being "“the same as, or similar or related to, each other", but were unsuccessful. However, since then, there has been little progress as to the substance of the dispute due to multiple spats between the parties as to whether the Court of Session has jurisdiction to hear the class action.

Round 1: anti-suit injunctions

The first round involved JFKL being granted an anti-suit injunction in the courts of Kenya, preventing the representative party appointed for the group (Hugh Campbell KC) from continuing to pursue the class action in Scotland, pending a decision by the Kenyan court as to whether the Court of Session has jurisdiction to hear the class action. As we wrote in August 2022, Mr Campbell was then granted an anti-suit interdict (the Scottish equivalent of injunction of his own) by the Court of Session, on an interim basis, which prevented JFKL from proceeding with its application in Kenya to decide on jurisdiction. JFKL attempted to have this interim interdict recalled unsuccessfully at the end of that month. This left the parties in a difficult position, with substantive progress in either forum meaning a risk of being in contempt of court in the other.

Round 2: preliminary proof (trial) on jurisdiction

As the court in Kenya was prevented from deciding whether the Court of Session had jurisdiction to the hear the class action, the Court of Session answered the question itself following a six-day long preliminary proof (a hearing of evidence with witnesses on a specific issue). As reported in July 2023, the Court of Session rejected both JFKL's primary argument that the Scottish court has no jurisdiction, and its fall-back argument that it was not the most convenient forum to hear the dispute (known as a plea of forum non conveniens). At that point, it seemed most likely that the class action would start to advance in Scotland once more.

Round 3: appeal

However, JFKL lodged an appeal against the court's decision, which was heard by the Inner House of the Court of Session (an appellate court of three senior judges) in October 2023. The opinion of the court was delivered on 7 November 2023 and resulted in partial success for JFKL.

Whilst the appellate court did not reverse the first instance decision that the Scottish court has jurisdiction (in other words, it upheld the decision that the Scottish courts can competently hear this class action), it did reverse the previous finding on the forum non conveniens challenge. The appellate court found that the judge at the preliminary proof had made an error of law when he concluded that a no-fault compensation scheme under the Kenyan Work Injury Benefits Act 2007 ("WIBA") did not apply to the type of injuries that the workers in this case have suffered. In fact, it did apply, meaning the workers could make use of this scheme, which was free to use and did not require the engagement of lawyers. If the claims were to proceed in Scotland, the Scottish court would have to attempt to emulate that scheme and make awards of damages in line with WIBA. Rather than doing that, it would be more convenient and appropriate for the claims to be resolved in Kenya under WIBA. The appellate court therefore sisted (paused) the Scottish class action to allow that to take place.

More rounds to come?

The representative party for the group members has the right to seek permission to appeal against this decision to the UK Supreme Court, if he so wishes. It won't become clear for many months whether that permission has been sought or granted.

Even if this decision is not appealed, it is possible that this will not be the last the Scottish courts hear of this case. The court noted in the Inner House appeal that if it becomes clear, for example, that there is an excessive delay in Kenya in dealing with these claims under the WIBA, the Scottish court may have to revisit the question of whether or not substantial justice can be delivered in Kenya, and whether to "unpause" the Scottish proceedings.