Aaa & Others v Unilever Plc
| Jurisdiction | England & Wales |
| Judge | Lord Justice Newey,Lord Justice Sales,Lady Justice Gloster DBE |
| Judgment Date | 04 July 2018 |
| Neutral Citation | [2018] EWCA Civ 1532 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A2/2017/0721 |
| Date | 04 July 2018 |
[2018] EWCA Civ 1532
Lady Justice Gloster
Lord Justice Sales
and
Lord Justice Newey
Case No: A2/2017/0721
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE HONOURABLE MRS JUSTICE ELISABETH LAING DBE
Royal Courts of Justice
Strand, London, WC2A 2LL
Richard Hermer QC and Robert Weir QC (instructed by Leigh Day Solicitors) for the Appellants
Charles Gibson QC, Adam Heppinstall and Ognjen Miletic (instructed by DLA Piper UK LLP) for the Respondents
Hearing dates: 24 to 26 April 2018
This case concerns an attempt to sue in England a parent company (Unilever Plc – “Unilever” — which is registered here) of an international group, together with one of its operating subsidiaries (Unilever Tea Kenya Limited – “UTKL”), which is registered in Kenya. The claim is brought by the appellants, who are employees and former employees of UTKL or residents living on a tea plantation run by UTKL at the relevant time. In order to be able to sue UTKL in England, the appellants have to show that they have a good arguable claim against Unilever, which can then be treated as the so-called anchor defendant in this jurisdiction. A claim can then be included in those proceedings against UTKL as a necessary or proper party.
The pattern of the issues which arise is similar to that in relation to other recent cases in which individuals have sought to bring proceedings in tort in England against an English parent company and its foreign subsidiary in respect of events occurring in the foreign country where that subsidiary carries on its operations: Lungowe v Vedanta Resources Plc [2017] EWCA Civ 1528 and Okpabi v Royal Dutch Shell Plc [2018] EWCA Civ 191. In the present case, the appellants contend that they were the victims of serious inter-tribal violence at the time of the 2007 presidential election in Kenya, when they were targeted by marauding mobs which came onto the tea plantations operated by UTKL where they worked and lived. They claim that both UTKL and Unilever owed them a duty of care in tort to take effective steps to protect them from this violence, which duty was breached in each case.
This is an appeal from the decision of Elisabeth Laing J, in which she held that the appellants had no arguable claim against either Unilever or UTKL. No duty of care was owed by either of those companies. This was because, applying the three part test for a duty of care in Caparo Industries Plc v Dickman [1990] 2 AC 605, the judge held that the damage suffered by the appellants was not foreseeable by either UTKL or Unilever. Further, in relation to Unilever, the judge held that it would not be fair, just and reasonable to impose a duty of care, since the duty alleged required, in effect, that Unilever should act as a surrogate police force to maintain law and order, whereas Unilever had been entitled to rely on the Kenyan authorities to do that. On the other hand, the judge held, albeit with hesitation, that there was a sufficient degree of connection between the activities of (and omissions to act by) Unilever, as the ultimate holding company of UTKL, and the damage suffered by the appellants so as to satisfy the test of proximity, according to guidance given by this court in Chandler v Cape Plc [2012] EWCA Civ 525; [2012] 1 WLR 3111. The judge held that it was reasonably arguable for the appellants that limitation defences would fail. She also said that if, contrary to her view, there were viable claims against both Unilever and UTKL, then England would be the proper forum to hear those claims.
The appellants appeal in relation to the judge's ruling that neither Unilever nor UTKL owed the appellants a duty of care. Unilever has put in a respondent's notice to argue that the judge should have found that there was no duty of care owed by Unilever on the additional ground that, contrary to her view, there was no proximity between Unilever and the appellants in respect of the damage suffered by them, according to the guidance in Chandler v Cape Plc. Unilever and UTKL also sought to challenge that part of the judgment in which the judge held that, if viable claims in tort existed against Unilever (as anchor defendant) and UTKL, England is the appropriate place for trial of those claims. Unilever also cross-appealed in relation to a previous case management decision by the judge, by which she declined an application by Unilever that the claim against it should be stayed on case management grounds, until after a trial had taken place in Kenya of the appellants claims against UTKL.
We heard extensive and interesting arguments from the parties on all these issues for the purposes of the appellants' appeal. However, as Gloster and Newey LJJ and I are in agreement that the appeal should be dismissed by reason of the proximity point in relation to Unilever set out in its respondent's notice, with the result that there is no anchor defendant for proceedings in England, it is not necessary to deal with the other issues. It would serve no useful purpose to do so. Indeed, it would be inappropriate to do so. If there is to be a trial, it will have to take place in Kenya against UTKL and against Unilever, if the appellants are able to join it in proceedings in Kenya. In those circumstances it is far better that we leave issues of foreseeability and what was fair, just and reasonable in terms of imposition of duties of care regarding events in Kenya in 2007 to the Kenyan courts, which are obviously more familiar with Kenyan society than we are, rather than trying to express opinions about them ourselves. The Kenyan courts will also be better placed than we are to rule upon the effect of the Kenyan Occupiers Liability Act, on which the appellants seek to rely in framing their case in tort against UTKL. Accordingly, we express no opinion in relation to the judge's reasoning on these issues.
Factual background
A detailed account of the corporate relationship between Unilever and UTKL and of events surrounding the presidential election of December 2007 in Kenya appears in the judgment below. For present purposes, a short summary is sufficient.
For many decades, UTKL has operated an extensive tea plantation in the southern Rift Valley near the town of Kericho. In the surrounding area, the Kalenjin are the principal tribal group. However, few Kalenjin work at the plantation. UTKL became an operating company in the Unilever group in the 1980s, as a result of corporate acquisitions by that group.
Over the years UTKL has drafted in an extensive workforce at the plantation, drawn from other parts of Kenya and other tribal groups including the Kikuyu, Kisii and Luo. The workforce reside on the plantation, together with their relatives. The appellants are members of these groups. In 2007, some 20,000 people were employed on the plantation. Together with their relatives, this meant that about 100,000 people lived on the plantation. About 30–50% were from the Kisii tribe.
There has been a long history of significant violence at Kenyan elections, much of it based on tribal rivalries. This has included violence in the Rift Valley and around Kericho. However, until the election in December 2007, the plantation had been free from the tribal violence which affected the surrounding area at election times.
Tribal tensions were high in relation to the presidential election on 27 December 2007, which was a close run affair between Raila Odinga of the Orange Democratic Party and Mwai Kibaki of the Party of National Unity. Mr Odinga was supported by the Kalenjin and some other tribes, including the Luo. Mr Kibaki, who was the winning candidate, was from the Kikuyu tribe and was supported by the Kisii and other tribes.
After the results were announced, there was what the judge described as a nationwide breakdown in law and order. Across Kenya 1,333 people were killed, many more were injured and there was extensive damage to property. Criminal rioters drawn from the Kalenjin and Luo invaded the plantation in large armed mobs and targeted people from other tribes who were living there, including the appellants. The mobs committed murders, rapes and other violent assaults and damaged property. The 218 appellants suffered in this violence in various ways. Seven of the appellants were murdered, and in their cases it is their estates which claim.
The appellants claim that Unilever and UTKL failed to have in place adequate crisis management plans to protect them against post-election violence of this kind, which they say was foreseeable. However, as already noted, the judge found that it was not (even arguably) foreseeable that post-election violence of this kind would spill over from the surrounding area into the plantation, since nothing remotely comparable had ever before happened on the plantation. The plantation is self-contained and extensive and had not been affected by previous bouts of post-election violence in the Rift Valley. Further, the judge found that it was not foreseeable that law and order would break down generally in Kenya and that the police would be unable to provide protection to the inhabitants of the plantation.
Relationship between Unilever and UTKL
In 2007 and 2008 Unilever was the ultimate holding company of UTKL. Unilever owned all the shares in Brooke Bond Group Limited, which in turn owned 88.2% of the shares in UTKL and hence had control of UTKL. Unilever and its Dutch sister company, Unilever N.V., are managed together as joint holding companies for the Unilever group. It is convenient to refer simply to Unilever in this judgment.
Unilever and UTKL are, of course, separate legal persons. At the relevant time UTKL's...
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