AAA and Others v Unilever Plc and Another
| Jurisdiction | England & Wales |
| Judge | The Honourable Mrs Justice Elisabeth Laing DBE,Mrs Justice Elisabeth Laing DBE |
| Judgment Date | 27 February 2017 |
| Neutral Citation | [2017] EWHC 371 (QB) |
| Docket Number | Case No: HQ15P03345 |
| Court | Queen's Bench Division |
| Date | 27 February 2017 |
[2017] EWHC 371 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mrs Justice Elisabeth Laing DBE
Case No: HQ15P03345
Mr Hermer QC, Mr Weir QC and Mr Vassall-Adams QC (instructed by Leigh Day) for the Claimants
Mr Gibson QC, Mr Heppinstall, Mr Miletic and Dr Webb (instructed by DLA Piper) for the Defendants
Hearing dates: 12 – 15 December 2016
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
This is my decision on two applications by the Defendants. Those applications concern a claim brought by the Claimants ('Cs') who are Kenyan nationals, against the First Defendant ('D1'), a holding company registered in the United Kingdom, and against the Second Defendant ('D2'). D1 is D2's ultimate holding company. D2 is a company registered in Kenya. It operates a tea plantation in Kenya ('the Plantation'). Cs were employed, or lived there. Cs were the victims of ethnic violence carried out by armed criminals on the Plantation after the Presidential election in Kenya in 2007. They claim that the risk of such violence was foreseeable by D1 and by D2, that D1 and D2 owed a duty of care to protect them from the risks of such violence, and that D1 and D2 breached that duty.
By an application dated 1 March 2016 D1 asked for Cs' claims against it to be stayed or dismissed. D1 argues that those claims are not justiciable in England and Wales, because they require the court to adjudicate on foreign acts of state ('FAS'). D1 also applies for a stay of the proceedings on the grounds, first, that the Cs should bring their claims in Kenya and second, that they should not be permitted to proceed with the claims in England and Wales when it is clear that the claims have only been brought for the improper purpose of attracting D2 into this jurisdiction.
By a Part 11 application dated 26 February 2016 D2 asked for
i) a declaration that the court does not have jurisdiction over D2 in these proceedings;
ii) an order setting aside the (ex parte) order dated 12 January 2016 giving the Cs permission to serve the claim form and general particulars of claim ('GPC') on D2; or
iii) a stay of these proceedings on the grounds that the court should not exercise any jurisdiction it may have over D2 (including because such an exercise would involve an adjudication on acts of a foreign state).
The applications give rise to several issues. The first issue is whether either claim is barred by FAS. I will consider this issue first.
The second and third group of issues concern D1's application for a stay on other grounds, and the issues which arise under paragraph 3.1 of Practice Direction 6B. Both were considered recently by Coulson J in Lungowe v Vedanta Resources Plc [2016] EWHC 975 (TCC), and more recently still by Fraser J in Okpabi v Royal Dutch Shell [2017] EWHC 89 (TCC). The general outline of those cases was similar, in that Zambian (or as the case might be, Nigerian) claimants who were affected by the activities of a subsidiary company in Zambia/Nigeria sought to bring a claim in England and Wales both against the parent company, which was registered here, and against the Zambian/Nigerian subsidiary.
I am not persuaded that the general approach of either Judge to the second group of issues was wrong, and I will adopt it gratefully, to the extent that those cases were factually similar to this. The third group of issues was carefully considered by both Judges, with opposite results. I was told that permission to appeal against both decisions has been granted.
The third group of issues arises under paragraph 3.1 of Practice Direction 6B. This allows a claimant to serve a claim form out of the jurisdiction with the court's permission where a claim is made against a defendant on whom a claim form has been served and there is between the claimant and the defendant a real issue which it is reasonable for the court to try, and the claimant wishes to serve the claim form on another person who is a necessary and proper party to that claim. Even if those tests are met, the court has a discretion, conferred by CPR 6.37(3), to refuse permission to the claimant to serve the claim form out of the jurisdiction if it is not satisfied that England and Wales is the proper place in which to bring the claim.
In Vedanta, at paragraph 97, Coulson J listed, in his own order, the issues which, the parties in that case agreed, had to be answered to deal with the second defendant's application in that case (an application which was similar to the application by D2 in this case). Coulson J's order for dealing with the issues is logical. It requires an initial focus on the merits of each claim. I will answer the disputed questions raised by D2's application in the same order.
i) Is there a real issue between Cs and D1 (conversely, is the claim bound to fail)? I consider in more detail, below, the main issues to which this claim gives rise.
ii) If so, does the claim against D2 have real prospects of success? This is not a high threshold. A claim has 'real prospects' if its chances of success are not 'fanciful'.
iii) Is it reasonable for the court to try that issue?
iv) Is D2 'a necessary or a proper party' to the Cs' claims against D1? The relevant test, it is agreed, is the same as the test for joinder of a party under CPR Part 19. It is sufficient if there is a 'serious issue involving [the foreign defendant] which is connected to the matters in dispute in the proceedings, and it is desirable to add [the foreign defendant] so that the court can resolve that issue'.
v) Are the courts of England and Wales the proper forum for the claim?
Leaving aside foreign act of state ('FAS'), the key to the applications seems to me to be whether the Cs' claims against D1 and D2 have arguable merit; both in substance, and with regard to limitation issues. In Vedanta, Coulson J held that the necessary elements of the claims had been properly pleaded and that he could not say that they lacked the relevant merit. Fraser J, on the other hand, held in Okpabi that it was not arguable that the parent company had a duty of care towards the claimants.
Cs were represented by Mr Hermer QC, Mr Weir QC and Mr Vassall-Adams QC. D1 and D2 were represented by Mr Gibson QC, Mr Heppinstall, Mr Miletic and Dr Webb. I thank all counsel for their comprehensive written submissions. I also thank them and their instructing solicitors for the meticulous preparation of the materials for this hearing. There were eight files of domestic authorities, 16 files of pleadings, evidence and expert reports, and eight files of materials referred to in the experts' reports. The case was tenaciously argued by three advocates throughout the four-day hearing. I am grateful to all of them for their courteous and effective oral presentation of the many issues.
The background
I am not in a position to, and do not, make any factual findings about the disputed issues in this case. The background is that the 218 Cs were, in 2007, temporary or permanent employees at, or people living in, a 13,000-hectare tea plantation owned and operated by D2 in the southern Rift Valley in Kenya. The Plantation is near Kericho town, which was then in Rift Valley Province ('RVP'). RVP had an area of 70,000 square miles and a population of 10m people.
Cs are members of the Kisii ethnic group. The Presidential election was on 27 December 2007. After the results were announced, there was a nationwide breakdown in law and order. Criminal rioters invaded the Plantation in bands of 100 to 300 people. They were members of the Kalenjin and Luo ethnic group. They committed murders, rapes and other violent assaults, and damaged property. Cs claim they were victims of that violence and that they lost property in it. Seven Cs were killed, women were raped and many people suffered personal injuries ranging from the severe to the transient. Across Kenya, 1,333 people were killed, 'very many more injured, thousands of public and private properties destroyed, vehicles and equipment ruined and private possessions stolen' (page 383 of the Report of the Waki Commission – 'the Report').
D2 is domiciled in Kenya. It was incorporated in 1925. Until 2009 D2 was a Kenyan public company listed on the Nairobi stock exchange. In 2009 it was de-listed and now 97.65% of its shares are owned by Brooke Bond Limited, a wholly owned subsidiary of D1. Its most recent accounts (2015) show that it has £81.2m of net assets.
D1 is D2's ultimate holding company and is registered in the United Kingdom. At the material time, D1 owned all the shares in Brooke Bond Group Limited. Brooke Bond Group Limited owned 88.2% of the shares in D2. D1 is not a trading company. It is a multi-national holding company. D1 and Unilever NV, a company domiciled in the Netherlands, own the shares in the subsidiary companies in the Unilever Group. There were about 107 subsidiary companies in 2007 (the correct figure is not clear: Mr Gibson told me in his Reply that the figure was 708). The Group operated in about 150 countries of the world in 2007. There were 174,000 employees in the subsidiaries. D2's employees therefore represented a more significant proportion of the total employees of the Group than D2's turnover did of the Group's total turnover. D2's turnover was about 2% of that of the Group.
The soil and climate in the area of the Plantation are ideal for growing tea. The tea bushes are productive all the year round. The Christmas period is a busy...
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