Group claim by Kenyan tea workers against Aberdeen-registered employer sisted pending resolution of local claims

About this case:

• Citation:
  [2023] CSIH 39
• Judgment:
  External link
• Court:
  Court of Session Inner House
• Judge:
  Lord Carloway

The action was raised by Hugh Campbell KC as the representative party of a group of workers seeking damages for musculo-skeletal injuries sustained while working for James Finlay (Kenya) Ltd, whose registered office was in Aberdeen. Following a preliminary proof, the lord ordinary repelled the defenders’ preliminary pleas-in-law of no jurisdiction and forum non conveniens and allowed the claims to proceed.

The appeal was heard by the Lord President, Lord Carloway, together with Lord Pentland and Lord Doherty. Lord Davidson of Glen Clova KC led the representation team for the reclaimers and Smith KC led the representation team for the respondent.

A lacuna that did not exist

It was contended by the defenders and reclaimers that the group members and the defenders agreed, in terms of their contracts of employment as well as a Collective Bargaining Agreement said to have been incorporated into that contract, to prorogate exclusive jurisdiction to the Kenyan courts. They also put forward an alternative argument that the Scottish courts were forum non conveniens as it was clearly more appropriate that the action be heard in Kenya.

At the proof, the defenders led expert evidence on the Kenyan Work Injury Benefits Act 2007, under which employers in Kenya are liable to pay compensation to an employee who is injured in an accident occurring in the course of his employment with no need to establish fault. It was explained by the defenders’ managing director that this system favoured employees, and that problems might arise if these claims were dealt with in Scotland due to the court’s lack of understanding of Kenyan culture.

The lord ordinary found that the defenders had failed to establish that the claims of the group members involved injuries or conditions which were covered by the WIBA. The defenders’ plea of no jurisdiction required to be repelled, as the court’s jurisdiction was not excluded by agreement. On the issue of forum non conveniens he held that there was a real risk that group members would not obtain substantial justice should they be required to litigate individual claims in Kenya.

The central submission for the reclaimers was that the lord ordinary wrongly found that there was a class of workplace injury not covered by the WIBA, which led him to repel their pleas. The WIBA formed part of the modernisation of Kenyan workplace health and safety law. The lord ordinary left that policy intention and context out of account, searching for a lacuna that did not exist.

Replace court proceedings

Lord Carloway, in his opinion, said of the WIBA: “Where the court disagrees with the lord ordinary is in his conclusion that the group members’ musculo-skeletal injuries do not fall within the ambit of the WIBA. His reasoning is based partly on the absence in the schedules of criteria for the assessment of such injuries, which criteria the Director was mandated to prescribe under the First Schedule.”

He continued: “Once it is accepted, in terms of its long title, that the WIBA was intended to replace first instance court proceedings with an alternative, administrative, dispute resolution system, ‘to provide for compensation to employees for work related injuries and diseases contracted in the course of their employment’, it becomes impossible to conclude that the legislature’s intention was that a particular category of relatively common workplace injury was to be excluded from its ambit.”

Addressing forum non conveniens, Lord Carloway said: “The Lord Ordinary’s reasoning is necessarily undermined by this court’s finding that the WIBA applies to the claims. The group members will not be able to raise first instance proceedings against the defenders in the [Kenyan courts] because it is incompetent to do so. The identified problems of first instance litigation will not arise. The group members have to make applications under the WIBA system, which is said to work well and is cost and lawyer free.”

He concluded: “Having regard to the court’s construction of the WIBA, the appropriate manner of proceeding is to sist these proceedings pending resolution of the claims under the WIBA, including any appeals to the court in Kenya. If the court’s construction, or its understanding of the practical operation of the WIBA, turn out to be ill-founded, or if the WIBA claims were not determined in accordance with the scheme, or if there were to be excessive delay, the court may have to revisit the question of substantial justice and consider whether the sist should be recalled.”

The court therefore allowed the reclaiming motion and sisted the group proceedings pending resolution of individual claims in Kenya under the WIBA scheme. The issue of forum non conveniens was left to be determined at a later date.