The Dekagram: 16th December 2024

Christmas is a time for horror stories and mysteries. And so it is that this week we bring you a blood curdling tale of witness mismanagement, with a terrifying denouncement to which anyone proffering expert evidence should pay careful heed. And in other news, for some months now we’ve been detecting an increased willingness on the part of the English courts to accept jurisdiction over claims with a foreign element – and in particular group claims – and we’ve spotted another one. It just remains for us to wish all our readers a very Merry Christmas and to commend to you once again the virtuoso performance of Sir Michael Caine in The Muppet Christmas Carol, an antidote if ever there was one to the hectic chaos this time of year can produce. We will be making sure to take sufficient time off over the holidays to enable us to return to you in the New Year with renewed vim and gusto, and we hope that you will be able to do the same. Seasons Greetings to you all.

A horror story of expert evidence…

This week, in the lead up to Christmas, Martin Spencer J handed down judgment in Samrai and others v Kalia [2024] EWHC 3143 (KC). It is another important case reminding us all of the duties experts have to the court, as well as of the disastrous consequences when they do not abide by them.

The claim brought by the Claimants concerned allegations of sexual and financial abuse and exploitation against the Defendant. Some of the Claimants contended that they had suffered psychological injuries, such that expert evidence was necessitated. 

The parties each obtained and relied upon evidence from psychological/psychiatry experts, with the Claimants specifically relying upon several psychological reports from Dr Jacqueline Blyth. However, her evidence fell far short of what is expected from an expert, such that Martin Spencer J noted that “regrettably, the reports and evidence of Dr Blyth fell well below the standard to be expected of a competent expert witness, both as to form and as to substance” for a number of reasons:

1. Firstly, Dr Blyth had failed to include the statement required in Practice Direction 35 paragraph 3.2(9), namely that she was aware of the requirements under Part 35, Practice Direction 35, and the Guidance for the Instruction of Experts in Civil Claims 2014.
2. She had not complied with CPR 35.10, i.e. she did not include a statement in her report that she had understood and complied with her duty to the court.
3. There was no statement in some of her reports of the substance of her material and instructions, nor was there an appendix or list of documents.
4. She accepted in questioning that in relation to a passage of one of her reports, she had been partisan and lost sight of her role as an expert.
5. She copied paragraphs of her report from an article by another individual, which was not acknowledged in her report. She did not include the article in the list of materials relied upon. Martin Spencer J said “it is difficult to imagine a more blatant breach not just of the provisions of Part 35, the Practice Direction and the Guidance, but, more fundamentally, an expert’s obligation to the court because these passages were, in effect, a deception practised on the court by Dr Blyth in pretending that these passages were her own words, representing her own opinions…”
6. Dr Blyth took a ‘full life history’ from each of the Claimants, but accepted in cross-examination that she didn’t include it or any part of it because she did not “think that it was of any relevance whatsoever”. However, she considered the full life histories supported her findings.
7. She accepted in cross-examination that she had come to court and attested the truth of her reports, without reminding herself of their contents. She also accepted this was not acceptable as an expert.
8. There were instances of inaccuracy or at worst misleading passages in Dr Blyth’s report.

Consequently, Martin Spencer J held that no reliance whatsoever could be placed on the reports and opinions of Dr Blyth. He considered that she was “prepared materially to mislead the court by passing off the views of another person as her own…” Consequently, her evidence was rejected in its entirety. 

This judgment provides a cautionary tale to experts and legal representatives. Some of the issues in respect of Dr Blyth’s reports could have identified (and potentially rectified) prior to trial; for example, not including the relevant statements in her reports from CPR 35 or Practice Direction 35, or the documents she had considered. That said, it is hard to reconcile how copying material from another individual’s article in the manner identified in this case could ever be in accordance with an expert’s obligations to the court. It is therefore unsurprising that this behaviour, coupled with partisan comments and inaccuracies, led to the expert’s evidence being rejected.

About the author

Ranked by the Legal 500 2021, 2022, 2023 and 2024 and by Chambers and Partners in 2023 as a Rising Star and 2024 as Up and Coming. Dominique Smith was called in 2016 and has a busy practice in travel law. She undertakes work for both Claimants and Defendants in package travel claims, contractual disputes, and other related claims. Dominique has a particular interest in cross-border clinical negligence claims and regularly appears in the Coroners’ Courts.

forum non conveniens and funding: unsuitability of foreign courts

In a recent decision, Limbu & others v Dyson Technology & others [2024] EWCA Civ 1564, the Court of Appeal determined a jurisdictional challenge founded on the unsuitability of the potential alternative jurisdiction to hear the claims. In a rare finding, the Court held that the claimants would not be able to obtain justice in the Malaysian courts by reason of their funding model, and that the claims should therefore be heard within this jurisdiction.

The facts

The claim arises from allegations made by 24 Nepalese and Bangladeshi migrant workers who allege that that they were trafficked to Malaysia and there subjected to conditions of forced labour, exploitative and abusive working and living conditions, and in the case of some of them, detention, torture and beating, in the course of manufacturing components and parts in the supply chain for the Dyson group. The first and second defendants are English members of the group; the third is a Malaysian group member. Thus the first and second defendants could be served within the jurisdiction as of right, but permission was required and given for the third defendant to be served in Malaysia as a necessary and proper party to proceedings.

The appeals

The third defendant appealed that permission for service outside the jurisdiction from Master Gidden to Clive Sheldon KC, sitting as a High Court Judge; the Judge allowed the appeal on the basis that Malaysia was the proper forum in which the claims should be heard, and that the claimants would be able to access justice within that system. The claimants appealed both aspects of his decision.

Jurisdictional decisions are, of necessity, highly fact sensitive, but it may be of interest to readers that the Court considered the following to be relevant facts to be taken into account in its determinations:

• Since the events giving rise to the claims, all but six of the claimants have returned to their native countries. Five remain in Malaysia. One is in the United Arab Emirates. All are extremely impoverished and speak little or no English or Malay.
• The first and second defendant has at all material times operated from Dyson’s UK office in Malmesbury, Wiltshire, which was the headquarters for the whole Dyson group until late 2019 (i.e. for the majority of the period covered by the claimants’ claims).
• Even after 2019 the evidence suggested that the Dyson UK office remains the primary operational control centre for the Dyson group with at least 3,500 employees based there, including most of the group’s senior management team and the key senior management and operational staff relevant to the claims.
• The UK office hosts a UK based sustainability team whose members are responsible amongst other things for developing and promulgating mandatory policies and standards to be observed in the supply chain for the Dyson group as a whole.
• The third defendant is a company domiciled and incorporated in Malaysia.
• The claims were governed by Malaysian law.
• The first and second defendants had issued defamation proceedings in the English High Court against a Channel 4 production featuring the claimants’ claims, and in particular that of the lead claimant. The defendants in that claim had indicated an intention to defend it on the basis that the allegations made in the programme were true – thus there was a significant overlap in the issues between the two sets of proceedings.

The criticisms of the Judge’s decision

The Court of Appeal found that in undertaking the evaluation exercise as to the more appropriate forum the judge had erred in the following respects:

• He had not given weight to the domicile of the first and second defendants within this jurisdiction; it did not feature as a subheading in his judgment, unlike other important factors. Furthermore, the claims against the first and second defendants were the primary claims; the claim against the third defendant was an addition made only in response to the first and second defendants’ response to the letter of claim, indicating that the domicile of the former was the more important factor. Furthermore, it was common ground that the third defendant is a group company for whom the litigation will be coordinated and conducted, whether it takes place in England or Malaysia, by the English officers and employees of Dyson UK from England, where the group chief legal officer is based.
• He had treated Malaysia as the ‘centre of gravity’ of the claims because the acts of abuse complained of were alleged to have occurred there. But the claims were for breaches of duty and for unjust enrichment which had occurred in England  – inadequate policies and inadequate enforcement of policies which had emanated from the Wiltshire office. The focus of the claim would not be whether or not the abuse had occurred (it seemed to be likely that this might be accepted), but rather on whether the defendants had known of it or were liable for it. This pulled the centre of gravity towards Wiltshire.
• He had taken the view that since the defamation proceedings were unlikely to be case managed with the instant proceedings, the risk of irreconcilable judgments was not nullified if he allowed the claims to proceed in the English courts. But the two sets of proceedings were both taking place in the King’s Bench Division of the High Court in England at the same time, and it would be surprising if the court did not take steps to coordinate case management in the two cases with a view to minimising the risk of factual issues being tried twice. In fact, the defamation proceedings had since been discontinued, and ‘a cynical observer might infer that this was in whole or in part to obtain tactical advantage in this appeal.’
• He had relied on various undertakings offered by the defendants in finding that the claimants would be able to fund the disbursements necessary to bring the claims in Malaysia. But these undertakings were not sufficient to ensure that the court could have confidence that the claims could be brought properly in Malaysia; the claimants would have to show that any proposed disbursements would be ‘reasonable and necessary’ before the defendants would fund them, and it might be difficult to do so timeously. Moreover, it might be necessary to waive privilege in order to do so, and this was unjustifiable.  ‘And what if new claimants emerge who wish to join the group? If they are not covered by the Undertakings at all, which they are not, must they start their own separate proceedings here?’
• He had concluded that the claimants could be represented in Malaysia by suitably qualified lawyers and that therefore there was no injustice to them in litigating there. But the defendants were experienced commercial entities well used to litigating, and in Malaysia the claimants might not be represented by lawyers with the experience and skill of their English lawyers. Inequality of arms in one of the two fora is a factor pointing to the other as more appropriate, particularly in cases engaging human rights arguments.

Bearing these errors in mind, the Court of Appeal substituted is own evaluation of forum for that of the judge.

The Court of Appeal’s decision

The Court came to the conclusion (at [63]) that the claimants’ poverty combined with lack of funding within the Malaysian system meant that the claims could not be brought within that jurisdiction and would therefore have to be brought in England. This is the ratio of the judgment.

The Court went on to find that the English courts were the more appropriate forum because:

• The primary defendants are domiciled here.
• The majority of the relevant documents are likely to be located here.
• The majority of the defendants’ witnesses are likely to be located here and the claimants could be brought to England to give evidence.
• The litigation will be coordinated here for both the claimants and the defendants.
• Any issues as to Malaysian law are relatively narrow. Largely it is the same as that of England and Wales, and where it is not, it is closely connected to English law (cf Perry v Lopag Trust Reg [2023] UKPC 16 in this regard).
• Both in terms of the standard of legal representation and the ability of the claimants to attend and give evidence in person, equality of arms favours England.

Comment

The reasoning of the Court of Appeal will be of interest to all practitioners undertaking work in cross border claims. The emphasis placed on funding considerations is an extension of recent authority, and the equality of arms arguments are consistent with the courts’ approach in the last few years. It seems that forum conveniens is slowly morphing from a concept bound up in appropriateness rather than convenience to the converse: logistical practicalities are coming to the fore in the courts’ consideration of the issue. It is also interesting that the court had regard to the experience and expertise of the claimants’ solicitors as opposed to the representation they might be expected to secure in Malaysia, suggesting that not all representation is created equally and that some lawyers within this jurisdiction would be at an advantage over others in invoking this factor when making submissions on forum conveniens. Of course, it’s not for the author to name names in that respect.

About the Author

Called to the Bar in 1997, Sarah Prager KC has been listed in the legal directories as a Band 1 practitioner in travel law for many years, and, more recently, listed in aviation as well. Together with her colleagues at Deka Chambers, Matthew Chapman KC, Jack Harding, Dominique Smith, Tom Yarrow and Henk Soede, 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. 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.