We've written before here on the availability of class action procedure in Scotland.

The Court of Session and the Kenyan courts have seen some hotly contested litigation over a class action whereby a group of up to 2,000 Kenyan tea-pickers are pursuing their employer, James Finlay Kenya Limited (JFKL), for compensation due as a result of alleged muscoloskeletal injuries they suffered whilst working in Africa. See our previous two blogs here and here. Whilst JFKL have their registered office in Aberdeen, hence the attempt to pursue in the Scottish courts notwithstanding, JFKL insist that the litigation should proceed elsewhere.

After several court clashes, including an anti-suit injunction, it has been reported that the Scottish court has now authorised the pursuit of the action in Scotland. The Court of Session has rejected JFKL's argument that the Scottish court has no jurisdiction and its fall-back argument that it is not the most convenient forum for the dispute.

This is not the first time that claimants have sought the jurisdiction of courts in the UK as the preferred option when the claims themselves and/or the alleged harm relate to circumstances abroad. See our previous blog here.

It does appear, therefore, that forum shopping, in multi-million pound damages and/or class actions, is alive and well. Of course, any attempt to pursue a class action in the UK will still need a relevant ground for jurisdiction. UK holding companies could find that attempts are made to bring proceedings in the UK – even where it may be a subsidiary company based further afield that is facing claims based on foreign law and where the circumstances arise in more tropical climes. The Scottish courts have shown themselves to be adept and willing to take account of the foreign law applicable to such disputes while proceeding with the action, however.

It rather looks like the action against JFKL will continue brewing for now in the Scottish courts under reference to Kenyan law on alleged injuries sustained at work on a continent many thousands of miles away.

Contributors

Stephen Goldie

Head of Litigation & Partner

Craig Watt

Partner & Solicitor Advocate