Magret Thomas and Others v PGI Group Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Cavanagh |
| Judgment Date | 19 October 2021 |
| Neutral Citation | [2021] EWHC 2776 (QB) |
| Docket Number | Case No: QB-2019-003882 |
| Court | Queen's Bench Division |
[2021] EWHC 2776 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Cavanagh
Case No: QB-2019-003882
Richard Hermer QC, Benjamin Williams QC and Kate Boakes (instructed by Leigh Day) for the Claimants
Charles Dougherty QC, Nicholas Bacon QC and Ognjen Miletic (instructed by Hogan Lovells) for the Defendant
Hearing date: 22 September 2021
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 reserved judgment in respect of one of the matters upon which I heard argument at a Costs and Case Management Conference (“CCMC”) that was held in these proceedings on 22 September 2021. I gave oral rulings during the hearing on the other matters of case management which I was asked to decide, and so I will not deal with those matters in this judgment.
The main matter with which this judgment is concerned is the Defendant's application for a Costs Capping Order (“CCO”), under CPR 3.19, which would have the effect of limiting the future costs recoverable by the Claimants, if the Claimants succeed in these proceedings, to £150,000 (or thereabouts). In the alternative, the Defendant invites me to set the costs budget for the Claimants, for the remainder of these proceedings, at about £150,000. The Defendant's primary submission, however, is that I should make a CCO limiting the Claimants' recoverable future costs to £150,000.
When I refer in this judgment to “CCOs”, I mean CCOs under CPR 3.19. Costs Capping Orders in judicial review proceedings, though sharing the same name as CCOs under CPR 3.19, are a completely different animal. They are governed by ss 88 to 90 of the Criminal Justice and Courts Act 2015. There can also be Costs Capping Orders in arbitral proceedings. This judgment is not concerned with the two other forms of CCOs.
This application raises novel and potentially important points of law and practice. So far as the parties are aware, this is the first time that a party has made an application for a CCO in the eight years since the costs budgeting regime was introduced on 1 April 2013. Furthermore, it is common ground that the amount of the CCO that is sought by the Defendant is a small fraction of the minimum legal costs that will be necessary for the Claimants to incur if this matter were to proceed to trial. Indeed, as I will explain, I am satisfied that, in practice, the effect of the making of a CCO in the sum of £150,000 will, in all likelihood, be that the Claimants will have to discontinue the proceedings. The Defendant does not shrink from acknowledging that this may be so, but says that this is not a reason to refrain from making a CCO. The Defendant accepts also that CCOs should only be made in an exceptional case, but, for reasons that I will explain, the Defendant submits that this is such an exceptional case.
I was accompanied at the hearing on 22 September 2021 by Costs Judge Simon Brown, who sat with me as an assessor. Judge Brown has great experience in costs matters. As I told the parties I would do, I have conferred with Judge Brown in relation to the issues in this matter. I am very grateful to Judge Brown for his assistance. Judge Brown has indicated that he is in agreement with my decision.
The Claimants were represented before me by Mr Richard Hermer QC, Mr Benjamin Williams QC, and Ms Kate Boakes. The Defendant was represented by Mr Charles Dougherty QC, Mr Nicholas Bacon QC, and Mr Ognjen Miletic. The bulk of the arguments on the costs issue were presented by Mr Williams QC and Mr Bacon QC. I am grateful to all counsel for their helpful submissions, both oral and in writing.
The proceedings
The parties, and the issues in the proceedings
The Claimants in these proceedings are 31 Malawian women who are or were employed by a Malawian-domiciled company, Lujeri Tea Estates Limited (“Lujeri”), to work in tea or macadamia nut plantations. The plantations are located in the Southern Region of Malawi. 10 of the 31 Claimants allege that they were raped by male managers, overseers or colleagues. Some allege that they have contracted HIV or have given birth to the children of their abusers. The other Claimants claim that they were subjected to sexual assault, sexual harassment, and/or other types of sexual discrimination by male employees of Lujeri. Many of the Claimants have been abandoned by their partners after their allegations came to light.
The Defendant is the parent company of Lujeri. It is domiciled in England. At the relevant times, it had three employees. The Claimants allege the Defendant owed a duty of care to them on the basis that it promulgated relevant policies, standards and guidelines, that it exercised supervision and control over Lujeri, and/or that it held itself out as exercising such supervision and control. The Claimants further allege that the Defendant breached that duty of care and that they suffered loss and damage as a result. The Claimants also contend that the Defendant breached their rights under the Malawian Constitution and the Malawian Gender Equality Act 2013.
The Defendant denies that it owed a duty of care to the Claimants, because, it says, it did not exercise operational supervision and control over Lujeri to the extent necessary to give rise to such a duty of care. The Defendant further denies that it is liable to the Claimants under the Malawian Constitution or the Gender Equality Act 2013.
A trial of Common Issues relating to liability is to be listed for 3–4 weeks on the first available date after 23 May 2022. At the CCMC on 22 September 2021, I identified two Lead Claimants for this purpose, Virginia Harry and Ayida Mpanga. The Common Issues include issues of legal principle consisting of (1) whether the Defendant owed a duty of care to the Claimants under Malawian law to take all reasonable steps to prevent them from suffering foreseeable harm in the workplace as a consequences of the types of mistreatment, sexual harassment and assaults up to and including rapes, and if so what was the scope and standard of that duty of care, and was it breached?; (2) whether the Claimants have a good claim on the basis that the Defendant breached the Claimants' constitutional rights under the Malawi Constitution; and (3) whether the Defendant can be liable in these circumstances for breaches of the Malawi Gender Equality Act 2013.
The other purpose of dealing first with lead cases is so that a representative sample of issues relating to individual circumstances can be addressed by the court, so as to give a steer which will enable the remainder of the cases to be dealt with by ADR, or at least to give the best chance that this will be possible. The Common Issues hearing will therefore also deal with the factual allegations made by the two Lead Claimants.
It is common ground between the parties that the claims must be determined in accordance with Malawian law. This applies both to the liability issues and to the assessment of damages, if the Claimants succeed on liability.
The likely level of damages that the Claimants will recover, if successful, and the Claimants' other objectives in bringing these proceedings
It is also common ground that the damages that the Claimants will receive, if they succeed, will, by English standards, be relatively modest. The cost of living and wage rates in Malawi are much lower than they are in the United Kingdom, and the Defendant estimates that, even if the Claimants were to succeed in their claims, the very most that they could expect to recover would be approximately £10,000 each, or about £310,000 altogether, although the Defendant considers that it is more likely that the compensation would be only about half that sum. The Claimants do not accept the estimated figures put forward by the Defendant, but they accept that the financial compensation that they can expect to receive if they are successful will indeed be relatively modest and will be very substantially lower than their own legal costs, let alone the legal costs of both sides. However, the Claimants say that these proceedings are not all about money. They seek to hold the Defendant to account for very serious alleged sexual misconduct by male Lujeri employees and wish to establish that they were telling the truth when they say that their rights were abused, so that they can restore their reputations. In addition, they want to bring to light, through legal action, systemic human rights abuses which they say have been suffered by female plantation workers in Malawi at the hands of their male managers and overseers, and the alleged chronic failure of companies to address these abuses and bring them to an end. This is in the hope that it will lead to reforms to the ways in which plantations in Malawi are operated and managed. I will refer to these non-financial objectives, globally, as “vindication”.
Discontinuation of the proceedings against the other Defendants
When these proceedings were commenced, Lujeri and another subsidiary company of the Defendant, Thyolo Nut Company Limited (“Thyolo Nut”), were also named as Defendants, on the basis that they are vicariously liable for their male employees' actions. The Claimants have discontinued the proceedings against both Lujeri and Thyolo Nut. The claims against Thyolo Nut were discontinued when it was realised that none of the Claimants was employed by that Company. As for Lujeri, the company contested jurisdiction under CPR 11, on the basis that the natural forum for the claims against Lujeri was Malawi, and the Claimants could obtain...
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