England: Malawian child farmer claims against British American Tobacco and Imperial to proceed

The two tobacco companies had asked the court to throw out claims brought by tobacco farmers and their wives and children alleging that the companies are responsible for the farmers being exploited. They also argue that BAT and Imperial have been unjustly enriched because the tobacco is being produced in conditions that amount to child and forced labour.

Mr Justice Martin Spencer said the tobacco companies’ applications to strike out had been “misconceived” and the claimants had properly pleaded the central allegation that they had grown tobacco that had been purchased by BAT and/or Imperial and used by them to make cigarettes and other tobacco products.

The tobacco companies had argued that the claimants should be required to set out all their evidence when they issued the claim. The judge said this was wrong as there is a difference in what evidence is needed when beginning a claim, versus what is needed to prove a claim at trial.

The claim will now continue and the next stage will be for the court to set down directions for the case to progress towards a trial with the likely next step for the defendants to provide defences to the claims.

In their case, the farmers and their families allege that BAT and Imperial facilitate unlawful and dangerous conditions, in which they, having been trafficked from their villages, have to build their own homes, live on a daily small portion of maize, work 6am to midnight seven days a week, and have to borrow money to be able to feed their families throughout the season. Much of the time the farmers are paid nothing at the end of the season.

In addition, they claim that BAT and Imperial know, or ought to know, that the conditions they are faced with leave them no choice but to rely on their children to work as child labourers in extremely hazardous conditions, sometimes from the age of only three years old.

BAT and Imperial argued at the strike-out hearing that the farmers had no evidence that the farms they worked on supplied tobacco purchased by their companies. Both defendants claim in their annual reports and other corporate literature that they are able to trace the tobacco down to the farm level which should mean that they can verify who has grown their tobacco.

However, in his judgment Mr Justice Spencer referred to correspondence in which BAT admitted that “traceability down to the farm level” did not actually mean they could trace tobacco to the individual farmers.

Martyn Day, senior partner at Leigh Day, representing the claimants, said: “BAT and Imperial make millions of pounds in profit each year and our clients believe much of this profit is down to the awful conditions that are present in their supply chains which use impoverished families to farm the tobacco and pay them a pittance to do so.

“It is not surprising that BAT and Imperial tried to get these very serious claims against them thrown out by the court. We are pleased that the court agreed with our clients that they have an arguable case which should be heard by the court.”