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Articles | Mon 5th Sep, 2022
As some members of the team breathe a sigh of relief at surviving the school holidays, whilst others mourn an idyllic summer spent enjoying the sunny weather, we’re all agog to find out who the incoming Prime Minister will appoint as Lord Chancellor and Attorney General. The lucky winners will face the longest delays ever in bringing a civil claim to trial (an average of 75 weeks) and problems in the criminal justice system which defy description. Meanwhile, the EU has joined the Hague Judgments Convention 2019 on the recognition and enforcement of judgments in civil and commercial matters, as has Ukraine, inevitably prompting unkind commentators to ask why, if a country facing an existential threat can do it, the UK hasn’t yet been able to sign up. Still, the accession of the EU to the Convention is a very positive development; if the UK were to accede, recognition and enforcement of judgments across the EU and beyond would become very much easier from 1st September 2023, when the Convention comes into force. It is of particular note that both Russia and the USA are also signatories. Could the nations of the world be brought together by a shared desire to recognise each other’s judgments? It would be nice to think so – and for the UK to be part of it.
The Scottish Torpedo: the Latest Salvo in the Kenyan Teaworkers’ Litigation
Regular readers will be aware of the ongoing class action brought by a group of Kenyan tea farm workers against their Scottish employer wending its way through the Scottish courts. As a recap, however, in Campbell v James Finlay (Kenya) Limited  CSOH 57 the representative plaintiff, Hugh Hall Campbell QC, represents some 1,044 former, or existing, employees of Kenyan nationality on whose behalf group proceedings have been brought against their employer, which operates tea plantations in Kenya, but whose registered office is in Scotland. In Thompsons Solicitors Scotland v James Finlay (Kenya) Ltd  CSOH 12, the Lord Ordinary granted permission for the group proceedings to proceed in the Scottish courts, dismissing the respondent’s forum non conveniens arguments. The employer reclaimed that order to the Inner House, but did not appeal on the ground that the court did not have jurisdiction, and the appeal was refused by the Inner House (in Campbell v James Finlay (Kenya) Ltd  CSIH 29).
The plot thickened, however. Before the reclaiming motion had been heard, the petitioner averred that his representatives became aware that the respondent had engaged in behaviour calculated to intimidate and threaten group members, and lodged a petition seeking ex parte interim interdict against this behaviour; on 8th April 2022 interim interdict was granted in the terms sought.
The petition was opposed by the respondent, which denied the allegations against it, and the petition was sisted on 13th July 2022 on the basis of an undertaking granted by the respondent in substantially the same terms as the interim interdict; the respondent undertook not to act in any manner ‘not in accordance with due process in the court of either Scotland or Kenya that was calculated to cause fear, alarm or distress to those employees and former employees of the respondent as named on the group register with the intention of dissuading those employees or former employees from continuing with litigation against [the respondent] in Scotland’.
Notwithstanding this, on 28th July 2022 the respondent applied for and was granted an interim injunction in the Employment and Labour Relations Court of Kenya, which had the effect of prohibiting the group members from continuing to pursue the group proceedings in Scotland.
The petitioner moved for interim interdict prohibiting the respondent from:
(a) continuing to prosecute the Kenyan Torpedo proceedings;
(b) raising any new proceedings to like effect.
The petitioner also sought an order under s.46 of the Court of Session Act 1988 ordering the respondent to apply to the Kenyan court as soon as practicably possible to recall or negate the effect of the interim orders granted on 28th July 2022.
The petitioner submitted that the respondent’s conduct in raising the anti-suit injunction was oppressive, vexatious and unconscionable. Further, at the time of giving its undertaking in the interdict process, the respondent evidently had the intention of bringing the anti-suit proceedings as was now plain from insertion of the reference to ‘due process’ at its insistence; accordingly, the Kenyan proceedings had been raised in bad faith for the sole purpose of obstructing the ongoing proceedings. It was necessary to grant the order sought in order to protect the legitimate interest of the petitioner (and of the group members) that the group proceedings continue. Group procedure did not exist, nor would funding be available, in Kenya and a strong prima facie case had already been made out before the Scottish courts. The balance of convenience favoured the petitioner: the reality was that if the group proceedings were not allowed to continue, litigation in Kenya would not be possible, and the group members would suffer grave prejudice.
The respondent disputed that the petitioner had a strong prima facie case: the petitioner’s central contention, namely that Scotland’s legal system was superior to that of Kenya, was unsound. There was no reason to suppose that the Kenyan courts would not give proper consideration to the group members’ claim that the Kenyan courts did not have exclusive jurisdiction or that Scotland was the appropriate forum. It was far more desirable that the Kenyan court give a definitive ruling on a question of Kenyan law, than that the Scottish court should attempt to reach a non-definitive ruling on the basis of competing expert evidence as to what Kenyan law was. Further, group proceedings and legal aid were available in Kenya. The balance of convenience favoured the respondent.
The petitioner succeeded before Lord Braid in the Outer House of the Court of Session.
The principles applicable to a case such as the present, where proceedings had been commenced in another country which had the effect of interfering with ongoing proceedings in the present jurisdiction, were set out in Turner v Grovit (Reference to ECJ)  1 WLR 107. The proceedings in Kenya could be restrained only if the respondent’s conduct in raising them was unconscionable, vexatious or oppressive. The question for determination at the present stage was whether the petitioner had pleaded a prima facie case of unconscionable, vexatious or oppressive conduct by the respondent.
The Petitioner’s Case
The petitioner’s argument was not founded on a contention that Scotland’s legal system was superior in some way to that of Kenya. Further, the petitioner had expressly disavowed any suggestion that the Kenyan courts would not approach the anti-suit injunction in a proper manner. The petitioner’s criticisms were entirely directed at the respondent. Essentially, the petitioner’s case as to why continuation of the Kenyan proceedings would be oppressive was that:
(i) in making the orders which it did, the Kenyan court was, in effect, misled by the respondent;
(ii) although the orders were lawfully granted by the Kenyan court, the respondent had an ulterior motive in obtaining those orders, namely to harass and intimidate the group members;
(iii) for the Kenyan court to do justice to the arguments before it, the proceedings would have to be opposed in a meaningful sense which was unlikely to be possible due to practical difficulties in obtaining instructions and funding.
The petitioner’s averments of oppressive conduct relied in particular on: the delay in raising the Kenyan proceedings; the alleged history of intimidation; the repeated attempts to thwart orders of the Scottish courts; the respondent’s revision of the undertaking, which clearly showed that the anti-suit injunction was in contemplation at that point; misuse of information on the group register by posting the names of all group members in an advertisement in a national newspaper and on various notice boards within the respondent’s premises; and the selective and in some respects misleading information which was provided to the Kenyan court. If proved, those averments were easily capable of founding the inference that the respondent’s conduct in raising the Kenyan proceedings was vexatious, oppressive and unconscionable. The petitioner had made out a strong prima facie case.
The Balance of Convenience
The group proceedings could not continue for so long as the Kenyan anti-suit injunction remained in place; that in itself would cause prejudice to the group members. If the Scottish proceedings were allowed to resume, the next stage of procedure was likely to entail either a debate or a preliminary proof to dispose of the pleas of no jurisdiction and forum non conveniens. There was no discernible prejudice to the respondent in being required to present its arguments on jurisdiction to the Scottish court; it was able to afford to do so, and it had already obtained an opinion as to the applicable Kenyan law. Conversely, there was at the very least a serious doubt as to whether the group members would be able to bring substantive damages claims in Kenya. There were also likely to be serious practical difficulties in their giving instructions for opposition to the anti-suit injunction, and in obtaining funding to do so. Even if those difficulties could be overcome it was likely to take some time for the legal representatives acting in Kenya to obtain 1,044 sets of instructions. That in itself could well lead to a delay in the Kenyan anti-suit proceedings being concluded. For all of those reasons, and also taking into account the strength of the prima facie case, the balance of convenience clearly favoured the petitioner.
Interim orders and an order under s.46 of the 1988 Act were appropriate. The case would be put out by order to discuss the precise terms of the orders to be made.
The court observed that the respondent’s argument that the Kenyan courts were best placed to decide whether Kenya had exclusive jurisdiction was superficially seductive. However, it was undermined by the general acceptance that it was for the courts of the place where an action had been brought (in the present case the Court of Session) to decide whether it had jurisdiction (in the present case, over a company domiciled in Scotland), not for a foreign court to determine that issue, Turner considered. The court considered that it had an interest in protecting its own jurisdiction, and the respondent had acknowledged that it would at the very least be unusual for a foreign court to decide the issue of whether a Scottish court had jurisdiction, which was a further factor pointing towards the grant of interim interdict.
To the English officious bystander the case, as well as being rich in the Scottish legal terms we have all grown to savour, appears to be an instance of what the author’s father would have described as ‘playing silly buggers’. Although no doubt galling to the employer, the fact remains that its employees brought proceedings first, and brought them in the home court of the Defendant. Attempting to torpedo a torpedo was always going to be a risky business, and it is perhaps unsurprising that it blew up in the Defendant’s face, particularly against a backdrop of allegations of harassment. It is difficult to muster much sympathy for a party when its too-clever-by-half tactical manoeuvrings come to nothing and serve only to lend credence to its opponents’ previously made assertions.
Let the outcome serve as a warning, then: the courts are jealous of their jurisdiction and will defend it fiercely if they consider that a party is conducting itself in bad faith.
About the Author
Called to the Bar in 1997, Sarah Prager has been listed in the legal directories as a Band 1 practitioner in travel law for many years. Together with her colleagues at 1 Chancery Lane, Matthew Chapman QC and Jack Harding, she co-writes the leading legal textbook in the area, and has been involved in most of the leading cases in the field in the last decade. Last year she was named Best Lawyers’ Travel Lawyer of the Year 2020/2021 and the Lawyer Monthly Women in Law Awards 2020: Personal Injury, and she was a member of the Consultative Group of Experts to the UNWTO Committee for the Development of an International Code for the Protection of Tourists, and is a member of the Admiralty Court Users’ Committee. She undertakes purely domestic high value personal injury work as well as cross border work and has a wealth of experience of difficult and sensitive cases.
As you know, we’re not ones to brag. Perish the thought. But we just thought we would mention that 1 Chancery Lane has been nominated for the Chambers UK Bar Awards 2022 in two categories: Client Service Set of the Year, and Diversity and Inclusion: Outstanding Set. Not only that, but our merger partner 9 Gough Chambers has been nominated for Personal Injury Set of the Year and our colleague there, Laura Begley, for Personal Injury Junior of the Year. Not bad. But just wait til we merge to form the new stellarset. There’s no telling what we’ll achieve when we’re all working under one roof.
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