This blog post was contributed by Dr Manos Maganaris, Module Convenor for Conflict of laws.
In November 2023, the First Division of the Court of Session has rendered its decision in the case of Hugh Hall Campbell KC v James Finlay (Kenya) Limited.
The court was tasked with determining whether a collective of employees, who reside and work on tea plantations in Kenya, could proceed with legal proceedings for workplace injuries against their employer in the Scottish courts. Despite being registered in Scotland, James Finlay (Kenya) Ltd (JFKL) carried out its business activities in Kenya. The group aimed to obtain compensation for musculoskeletal injuries they claimed to have suffered due to their employer’s alleged negligence during plantation work.
The Court of Session has opted to temporarily sist (halt) the Scottish proceedings until the claims undergo resolution through the statutory administrative process in Kenya.
This action was raised before the First Division of The Court of Session as a result of an appeal to the decision reached in April 2023 by the Outer House of the Court of Session in Hugh Campbell KC v James Finlay (Kenya) Ltd [2023] CSOH 45, where Lord Weir dismissed the defendant’s forum non conveniens objection to jurisdiction, allowing, thus the case to proceed in Scotland.
In reaching that decision, Lord Weir extensively addressed various issues under Kenyan law, scrutinizing exclusive jurisdiction claims based on the choice of court in employment agreements and potential implications of mandatory Kenyan collective labour law. Ultimately, he rejected these assertions and turned to the forum non challenge, requiring the defendants to demonstrate that it was distinctly more appropriate for the group members’ claims to be heard in Kenya.
Lord Weir found no compelling evidence, based on the pleadings and presented testimony, indicating significantly complex and disputed issues of Kenyan law. Arguments in favour of forum non conveniens included concerns that the proceedings would involve cultural nuances requiring understanding of Kenyan behaviour, local investigations, enforceability uncertainties, and the need for interpreters, potentially prolonging the proceedings.
Whilst recognizing Kenya as a suitable jurisdiction based on factors such as the group members’ residence, the location of the injury, and the defenders’ activities in Kenya, the scales ultimately tipped in favour of Scotland. Lord Weir referred to compelling evidence indicating a significant risk that the group members might not receive justice if required to pursue litigation in Kenya. This underscores the crucial consideration of practical feasibility in pursuing a claim. The judge took into account economic limitations faced by the group members, their inability to secure legal aid in Kenya, and the absence of provisions supporting group proceedings similar to those available in Scotland.
Lord Carloway of the First Division of the Court of Session (sitting with Lords Pentland and Doherty) first looked at the issue of jurisdiction. Under the Civil Jurisdiction and Judgments Act 1982, both Scottish and Kenyan courts held jurisdiction over JFKL. The employment contracts specified the application of Kenyan law to workplace injury claims but did not mandate the pursuit of such claims in Kenyan courts. Thus, the Court of Session had jurisdiction to hear the claims.
On the question of forum non conveniens, the court found that the injuries suffered by the group members were covered by the Work Injury Benefits Act 2007 (WIBA)[1] necessitating, therefore, resolution under the relevant scheme. This posed a jurisdictional challenge, as the Court of Session lacked experience in applying the WIBA scheme and could theoretically only award compensation equivalent to what the Director[2] in Kenya would grant. As such, this circumstance favoured Kenya as the more appropriate forum.
The prudent course of action was to suspend the Scottish proceedings until the resolution of claims under WIBA. The court refrained from stating that the WIBA system could not deliver substantial justice to the group members. If the claims were not to be determined in accordance with WIBA or faced undue delays, the court reserved the right to lift the suspension. Currently, however, the claims were to be pursued in Kenya.
[1] The Kenyan law governing compensation claims for workplace injuries through a no-fault compensation scheme.
[2] The Director of Occupational Safety and Health administratively determines these claims, with the option for workers to appeal decisions to the Kenyan Employment and Labour Relations Court.