Dhan Kumar Limbu & 23 Others v Dyson Technology Ltd
| Jurisdiction | England & Wales |
| Judge | Clive Sheldon |
| Judgment Date | 19 October 2023 |
| Neutral Citation | [2023] EWHC 2592 (KB) |
| Court | King's Bench Division |
| Docket Number | Case No: QB-2022-001698 |
[2023] EWHC 2592 (KB)
Clive Sheldon KC
(Sitting as a Deputy High Court Judge)
Case No: QB-2022-001698
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Charles Gibson KC
Adam Heppinstall KC
Freya Foster
(instructed by Baker & McKenzie LLP) for the Applicant/Defendants
Richard Hermer KC
Edward Craven
(instructed by Leigh Day) for the Claimants/Respondent
Hearing dates: 18–20 July 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on 19 October 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Clive Sheldon KC
Clive Sheldon KC:
Dhan Kumar Limbu is a Nepalese national. He was a migrant worker, employed at factory facilities in Malaysia which manufactured products and components for Dyson-branded products. Mr. Limbu, along with 22 other migrant workers from Nepal and Bangladesh, and the personal representative of the estate of a deceased migrant worker from Nepal (collectively, “the Claimants”), have issued proceedings in England and Wales (shortened for convenience in this judgment to “England”) against three Defendants who are part of the Dyson group of companies (“the Dyson Group”): (1) Dyson Technology Limited (D1), (2) Dyson Limited (D2), and (3) Dyson Manufacturing SDN BHD (D3) (collectively, “the Dyson Defendants”). D1 and D2 are domiciled in England. D3 is domiciled in Malaysia.
At a hearing before me on 18–20 July 2023, I was asked to consider whether the trial of the Claimants' action should take place in England. D1 and D2 seek a stay of these proceedings on the basis that the proper forum is Malaysia. D3 seeks to set aside the order granted without notice by Master Gidden on 3 October 2023, serving them with these proceedings.
I. The Proceedings
On 27 May 2022, the Claimants lodged proceedings against the Dyson Defendants. The claim form was amended on 13 September 2022, and Particulars of Claim were filed on 26 September 2022.
In the Amended Claim Form, the Claimants claim that (i) the Dyson Defendants are liable to the Claimants for negligence; (ii) the Dyson Defendants are jointly liable (with the primary tortfeasors) for the commission of the torts of false imprisonment, intimidation, assault and battery; and (iii) the Dyson Defendants have been unjustly enriched at the expense of the Claimants. The primary tortfeasors, who are not sued by the Claimants, are identified as ATA Industrial (M) Sdn Bhd (“ATA”) and Jabco Filter System Sdn Bhd (collectively, “ATA/J”), and the Malaysian Police.
The Claimants' claims are set out in detail in the Particulars of Claim. In summary, the Claimants allege that for a substantial period of time (collectively their periods of employment range from 2011 to 2022) they were subjected to forced labour and highly exploitative and abusive working and living conditions while working for ATA/J at a factory in Johor Bahru, a city at the southern end of the Malaysian Peninsular, which manufactured products and components for Dyson-branded products.
It is alleged that D1's principal activities concern the invention, development and sale and service of Dyson products, as well as the provision of a range of support services to other companies within the Dyson Group, including services relating to finance, human resources, IT and property management. It is alleged that D2's principal activities are the sale and service of Dyson-branded products. It is alleged that D3's principal activities are the manufacture, sale and distribution of Dyson products, the management of contracting services, as well as the direct oversight of the relationship between the Dyson Group and the owners and management of the factory facilities within the Dyson supply chain, including in relation to worker recruitment and conditions of work at those facilities.
It is alleged that each of the Claimants was recruited to work at the factory facilities by recruitment brokers or agents working for ATA/J. When working for ATA/J, it is alleged that the Claimants were forced to work substantial overtime, above their 12 hour shifts, in breach of section 60 of the Malaysian Employment Act 1955 (“the 1955 Act”); they were refused annual leave, contrary to sections 60D and 60E of the 1955 Act; they were not paid the legal minimum wage, contrary to various Minimum Wage Orders; and they were subjected to onerous production targets, and placed under considerable pressure to meet those targets and frequently punished if they failed to do so, including by way of intimidation and physical violence; and they suffered unlawful deduction of wages contrary to section 20 of the 1955 Act.
It is alleged that the Claimants were required to live at ATA/J accommodation, and that the accommodation was invariably insanitary, overcrowded and degrading; and that they were not able to leave the accommodation at will, and were forced to hand over their passports to ATA/J personnel. It is alleged that although ATA/J assured the Claimants that their visas would be renewed, two of the Claimants were arrested and detained on the grounds that they did not have a permit. It is also alleged that Mr. Limbu, who sought to expose the abusive working and living conditions to an assistant of Mr. Andy Hall, a British specialist in human and migrant rights, was arrested and assaulted by the Malaysian police when his provision of evidence came to light. It is alleged that this was facilitated by representatives of ATA/J, and that a representative of ATA/J threatened and intimidated Mr. Limbu into signing a statement saying that he had received a large sum of money from Mr. Hall for providing his information. It is alleged that another Claimant (Mr. Hossain), who had taken photographs of the factory and living conditions was also arrested and interrogated by police, having been taken there by ATA/J personnel. Overall, the treatment of the Claimants is alleged to constitute unlawful forced labour.
The Dyson Defendants are alleged to exert a high degree of control over the manufacturing operations and working conditions at ATA/J's factory facilities. They are also alleged to have promulgated mandatory policies and standards concerning the working and living conditions of workers in the Dyson Group's supply chain, including at ATA/J. This includes the Dyson Ethical and Environmental Code of Conduct (“the Code of Conduct”) which refers to “No Forced Labour”, and requires suppliers to observe the conditions of the Code of Conduct. In addition, there is the Dyson Modern Slavery and Human Trafficking Statement 2020, which refers to the conducting of risk assessments of the supply chain and audits to assess compliance, and sets out remediation mechanisms for non-compliance. D1 and D2 are also alleged to have promulgated a Supply Chain Foreign Migrant Worker Recruitment and Employment Policy, which sets out minimum requirements for the recruitment and treatment of migrant workers by Dyson suppliers: this includes freedom of movement (including regulating the holding of passports) and no forced labour. D1 and D2 are alleged to have promulgated a Dyson Supplier Accommodation Standard. It is alleged that D1 and D2 employed various employees with specific responsibility for the creation, management and implementation of these policies.
D3 is also alleged to be responsible for the promulgation and/or implementation and enforcement of the aforementioned policies and standards. D3 is alleged to be responsible for setting the standards for worker welfare in supply chains in South East Asia, and for running a comprehensive programme of regular audits across manufacturers, including ATA. In addition, reference is made to various job roles relating to these policies at D3.
The Claimants allege that the Dyson Defendants knew of the high risk of forced labour in the Malaysian operations from a variety of sources: public sources, as well as from their own audits, and more specifically from the various notifications provided by Mr. Hall between August 2019 and September 2021 with respect to ATA/J's practices.
Appended to the Particulars of Claim are summaries of the specific facts pertaining to each of the Claimants.
With respect to remedies, the Claimants claim damages, including aggravated and exemplary damages; as well as personal and/or proprietary restitution of the Dyson Defendants' unjust enrichment.
The Amended Claim form was served on D1 and D2 on 26 September 2022. On 29 September 2022, an application was made for service of the Amended Claim Form and Particulars of Claim out of the jurisdiction on D3 pursuant to CPR rule 6.36. Master Gidden made the order to serve D3 on 3 October 2022. Service was effected on D3 on 7 October 2022.
On 10 October 2022, D1 and D2 filed an acknowledgment of service indicating their intention to contest jurisdiction, and D3 did likewise on 28 October 2022. On 14 November 2022, the Dyson Defendants made an application pursuant to CPR rule 11.1 and rule 11.6(a) for a declaration that the Court should not exercise its jurisdiction over D1 and D2, and for a declaration that the Court has no jurisdiction over D3 and shall not exercise jurisdiction, and that the service of the Claim Form and Particulars of Claim should be set aside.
The Dyson Defendants have given a number of undertakings to the Court as to how they would conduct the proceedings if their application succeeded and the claim was brought in Malaysia. The undertakings were summarised in an annex to the witness statement of Francesca Richmond, a partner at Baker & McKenzie LLP, solicitors for the Dyson Defendants:
(i) D1 and D2 will submit to the...
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