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OUTER HOUSE, COURT OF SESSION
[2022] CSOH 57
P657/22
OPINION OF LORD BRAID
In the cause
HUGH HALL CAMPBELL QC
Petitioner
For
Interdict and interdict ad interim and an order under the Court of Session Act 1988
Petitioner: Smith QC, C Smith; Thompsons
Respondent: Lord Davidson of Glen Clova QC, A McKenzie; CMS
22 August 2022
Introduction
[1]
This petition called before me on the petitioner's motion for interim interdict
prohibiting James Finlay (Kenya) Limited (JFKL) (a) from continuing to prosecute ongoing
proceedings which it has raised in the Employment and Labour Relations Court of Kenya
and (b) from raising any new proceedings to like effect. (The type of interdict sought is
commonly referred to as an anti-suit interdict, or, in other jurisdictions, as an anti-suit
injunction). An order is also sought under section 46 of the Court of Session Act 1988
ordaining JFKL to apply to the Kenyan court as soon as practicably possible to recall or
negate the effect of interim orders already granted on 28 July 2022. JFKL accepts in principle
that if interim interdict is granted, an order under section 46 would also be appropriate,
2
since otherwise the interdict would have no practical effect. The unusual - although not
unique feature of this case is that the proceedings which it is sought to interdict, and to
have JFKL discontinue, are themselves anti-suit proceedings, which are intended to, and do,
have the effect of preventing the petitioner from continuing to pursue group proceedings
which are currently under way in this court in which he is the representative party.
[2]
The test for granting interim interdict is, first, whether the petitioner has pled a prima
facie case and, if so, second, whether the balance of convenience favours him. I address both
issues below but first it is necessary to say something of the parties and the background.
The parties
[3]
The petitioner is the representative party for some 1,044 Kenyan nationals who are
the group members in group proceedings against JFKL, in which it is claimed that they have
suffered loss, injury and damage through JFKL's fault, negligence and breach of contract. It
should be noted that some of the group members continue to be employed by JFKL but
many of them are no longer employed there. The petitioner avers that he has an obligation
to take reasonable steps to ensure that the proceedings take place in a proper fashion to
advance the interests of the group members individually and as a group. The respondent,
JFKL, is a major producer and supplier of tea globally, employing some 9,500 people, many
of whom live on JFKL's estates in Kenya. It has its registered office in Scotland and is
therefore domiciled here.
Technical Issue
[4]
I will begin by disposing of a technical issue raised, albeit not vigorously pursued, by
senior counsel for JFKL. He submitted that the present petition was arguably a group
3
proceeding in terms of section 20 of the Civil Litigation (Expenses and Group Proceedings)
(Scotland) Act 2018. The petitioner, although the representative party in the on-going group
proceedings referred to in para [3], did not have the permission of the court to bring the
present petition, in terms of section 20(5). This could perhaps be cured were the petitioner
to move for permission, which would not be opposed, although a further difficulty might
then be that the Rules of Court provided that group proceedings must be raised by way of
summons. Senior counsel for the petitioner did not take up the invitation to move for
permission, instead submitting simply that the petitioner clearly had standing to bring the
present petition.
[5]
I do not agree that the issue raised by the present petition is one which is, or ever
would be, suitable for a group proceeding. The process is not one which might involve two
or more persons each of whom has a separate claim (see section 20(2)). Rather, the petitioner
asserts that proceedings raised in Kenya have the effect of restraining proceedings in
Scotland which he does have permission to pursue. The petitioner was named as an
interested party in the Kenyan proceedings. The real question is whether he has title and
interest to bring the present petition, and I am satisfied that he does, given that he is charged
with the responsibility of pursuing the group litigation on behalf of the group members and
the proceedings in Kenya prevent him from doing just that. Accordingly, section 20 of the
2018 Act has no application and the petitioner does not require permission.
Background
The group proceedings
[6]
The group proceedings are being actively defended, on their merits, by JFKL. The
first point to make about that litigation, relevant to the raising of anti-suit proceedings in
4
Kenya in July 2022 when the Scottish proceedings were well under way, is that JFKL has
been aware since no later than the autumn of 2021, from pre-action correspondence, that
group litigation in Scotland was proposed. After sundry other procedure, a hearing took
place on 16 February 2022 to determine whether or not permission for the group
proceedings ought to be granted. JFKL opposed the granting of permission. At that stage it
did not argue that the Court of Session did not have jurisdiction to entertain the group
proceedings although it did advance one proposed defence of forum non conveniens. The
Lord Ordinary, having heard from both parties, granted permission for the proceedings to
commence and fixed a timetable for the progress of the action. In accordance with the Rules
of Court, the Lord Ordinary determined the issue as being claims in respect of
musculoskeletal injury arising from common conditions of employment engaged in
harvesting tea on estates owned and/or operated by JFKL in Kenya. Although JFKL
subsequently reclaimed (appealed) that order to the Inner House, it did not appeal on the
ground that the court did not have jurisdiction over JFKL. Rather, its appeal was directed
towards whether there was a single issue which could properly be the subject of group
proceedings. The appeal was refused by the Inner House, which re-set the timetable fixed
by the Lord Ordinary (in light of the delay caused by the appeal). Subsequently, defences
were timeously lodged by JFKL
[7]
One requirement of group proceedings is that the names of those individuals who
wish to join in the proceedings, and to make a claim, are recorded on a group register, which
requires to be lodged with the court and to be updated from time to time. Such a register
has been made up and lodged in process. It is a court document.
[8]
In its defences to the group proceedings, JFKL (for the first time) introduced a plea
that this court has no jurisdiction to hear the group proceedings. The jurisdiction which this
5
court would otherwise have by virtue of JFKL's domicile is said to have been ousted by the
Kenyan Work Injury Benefits Act 2007 (WIBA). (In the Kenyan proceedings, although not
yet in the defences, it is argued that jurisdiction is also ousted by a collective agreement
prorogating jurisdiction to the Kenyan Employment and Relations Court.) Catering for the
possibility that the court finds that it does have jurisdiction, JFKL also has a plea of forum
non conveniens. That plea is to the effect that having regard, among other things, to the fact
that the group members all reside in Kenya and that the tea estates are there, the natural
forum for the litigation is Kenya. The defences contain full averments in support of both
pleas, which have yet to be considered and determined by this court. For that matter, the
petitioner has not yet had the opportunity to answer the defences. The petitioner has
however lodged, in this process, an opinion from Dr Willy Mutunga (a former Chief
Justice/President of the Supreme Court of Kenya) to the effect th at neither the WIBA nor
other legislation founded on by JFKL in its anti-suit proceedings has the effect contended for
by JFKL of ousting the jurisdiction of the Scottish courts. (For the avoidance of doubt, JFKL
has its own expert opinion in support of its contrary position.)
The sheriff court actions
[9]
Also relevant are seven other actions, also in respect of musculoskeletal injuries,
previously raised against JFKL in the All-Scotland Personal Injury Court at Edinburgh,
which are presently sisted. It appears that no plea was taken as to the court's jurisdiction in
those actions. In one action, an order was granted for inspection of JFKL's premises by an
ergonomics consultant. I revert to this below.
6
The first interdict
[10]
After the order of 16 February 2022 but before the reclaiming motion had been heard,
the petitioner avers that his representatives became aware that JFKL had caused, permitted
or instructed a number of its managers to engage in behaviour calculated to intimidate and
threaten group members. The then group representative lodged a petition seeking interim
interdict against such behaviour. It was averred in that petition, among other things, that
specific threats had been made to named workers that once the details of those seekin g
compensation who were still working for JFKL were known, the employment of those
persons would be terminated. The petition also contained averments of other behaviour
calculated to intimidate or harass the group members (such as placing unreasonable wor k
demands on them). Affidavits were lodged in support of those averments. Interim interdict
in the terms sought was granted ex parte on 8 April 2022.
[11]
That petition was opposed by JFKL. In its answers, it denied the allegations of
intimidating and threatening behaviour. Following sundry procedure, including the
allowance of a proof, and following an assertion by JFKL that the order granted was too
wide, the petition was sisted on 13 July 2022 on the basis of an undertaking granted by JFKL
in substantially the same terms as the interim interdict. One subtle difference between the
interdict and the undertaking was that JFKL undertook not to act in any manner not in
accordance with due process in the court of either Scotland or Kenya that was calculated to cause
fear, alarm or distress to those employees and former employees of the respondent as
named on the group register with the intention of dissuading those employees or former
employees from continuing with litigation against JFKL in Scotland (the italicised words are
those which did not appear in the interdict and were added at JFKL's instance). The
petitioner avers that at no time did JFKL's legal advisers produce evidence to contradict the
7
petitioner's claims of harassment and intimidation. Additionally, JFKL agreed to meet the
expenses of the petition to date, which the petitioner maintains is a clear indication that it
was accepted by JFKL that the petition was justified.
The Kenyan anti-suit injunction
[12]
On 28 July 2022, JFKL applied for and was granted an interim injunction in the
Employment and Labour Relations Court of Kenya. No advance notice was given to the
petitioner or to those representing the group. In support of its application, JFKL lodged an
affidavit by its managing director, Simon Hutchinson. In summary, the interim orders
prohibited the group members (a) from prosecuting or proceeding in any manner with the
group proceedings and (b) from initiating any further actions with regard to any work
injury claims arising in Kenya, pending the hearing of the Kenyan application. A direction
was also issued that the application be posted on JFKL's notice boards within its premises.
A further direction was issued that the application be placed before the Duty Judge on
25 August 2022 for further directions on disposal. I am told that no substantive decision on
the application would be reached on that date but that, if opposed, a final hearing could be
expected in October or November 2022. (In any event, for what it is worth, JFKL has
undertaken, in light of this petition, to have that date deferred by two weeks if possible).
[13]
Although, as such injunctions must be, the orders granted by the Kenyan court are
directed against the group members, rather than this court, and although the present
petitioner was named only as an interested party, not as a respondent, the effect of the
orders is that the group proceedings cannot be progressed for so long as the orders remain
in force. That has the effect that this court is presently unable even to consider the pleas of
no jurisdiction and forum non conveniens which have been advanced in the group
8
proceedings. Were a final injunction to be granted, that would have the practical effect that
a foreign court would have decided conclusively that this court did not have jurisdiction to
hear claims of which it is currently seised, and of bringing the group proceedings to an end.
The law
[14]
It is well established that a Scottish court has the power at common law to interdict
foreign proceedings: see, eg, Young v Barclay (1846) 8D 774; California Redwood Company in
Liquidation v The Merchant Banking Company of London (1886) 13R 1202; Pacific Coast Mining
Co v Walker (1886) 13R 816; Anton, Private International Law 3
rd
Edn. 8.425-8.439. The power
should be exercised with caution: Young v Barclay. Anton, at 8.426, refers to the distinction
between cases where both countries concerned could have jurisdiction to decide the case
(alternative forum cases) and cases where only the other country has jurisdiction (single
forum cases). In alternative forum cases, the power to grant an anti-suit injunction or
interdict may be exercised where the pursuit of the relevant proceedings is vexatious or
oppressive; in single forum cases, the bar is higher, since to prevent proceedings in the sole
country which has jurisdiction would inevitably lead to injustice, but even in such cases, it is
said that an anti-suit injunction may be granted to prevent unconscionable conduct.
[15]
Anti-suit interdicts or injunctions have been granted in a variety of circumstances. In
some cases, proceedings have already been commenced in the foreign jurisdiction; in others,
not. One category of case (such as California Redwood) is where a bankrupt estate is being
administered in this country and an interdict is granted to restrain a person from seeking, by
foreign proceedings, to obtain the sole benefit of foreign assets; in such cases, the purpose of
the interdict may be said to protect the jurisdiction of the court here.
9
[16]
Although the petitioner's position is that the present case is an alternative forum
case, it should be noted that in many such cases, the pursuer/plaintiff/applicant has raised
two sets of proceedings, one in each jurisdiction, and the issue in those cases is whether one
set of proceedings should be prevented from progressing further, in order that the other
court may determine the case. That is not the factual situation here, since there currently are
no proceedings against JFKL in Kenya. Rather, JFKL's position before the Kenyan courts
(and here) is that this is a single forum case, that forum being Kenya. It is on that basis that
the Kenyan anti-suit order was obtained.
[17]
Here, the parties accept that the principles applicable to a case such as the present
(where proceedings have been commenced in another country which have the effect of
interfering with on-going proceedings in this jurisdiction) are set out in Turner v Grovit 2001
WL 1479757 in the speech of Lord Hobhouse of Woodborough. The facts of th at case, stated
briefly, were that employment tribunal proceedings for unfair/wrongful dismissal were
under way in England at Mr Turner's instance, when his employers raised proceedings
against him in Madrid seeking damages of a much larger amount than he was claiming. The
Court of Appeal found as a fact that the Madrid proceedings were launched in bad faith "in
order to vex" Mr Turner in the pursuit of his employment tribunal claim. The English
common law was considered by Lord Hobhouse. After stressing that the term "anti-suit
injunction" is something of a misnomer, since it is directed not at the foreign court, but at the
wrongful conduct of the party to be restrained, and after discussing the circumstances in
which such injunctions may or may not be granted, Lord Hobhouse summarised the
essential features which made it proper for an anti-suit injunction to be granted:
a)
The applicant is party to existing legal proceedings in this country;
10
b)
The defendants have in bad faith commenced and propose to prosecute
proceedings against the applicant in another jurisdiction for the purpose of
frustrating or obstructing the proceedings in this country;
c)
The court considers that it is necessary in order to protect the legitimate
interest of the applicant in the domestic proceeding to grant the applicant a
restraining order against the defendants.
[18]
Two further points made in Turner are worthy of mention. First, a contractual
exclusive jurisdiction clause will give a party a right not to be sued in a particular
jurisdiction (paragraph 25). Second, at least in our law, the question of whether a foreign
court has jurisdiction and if so whether to exercise that jurisdiction are questions which fall
to be decided by the foreign court itself (paragraph 26).
[19]
In summary - and I do not believe this is a matter of contention between the
parties - the proceedings in Kenya may be restrained only if JFKL's conduct in raising them
was unconscionable, vexatious or oppressive, it not being argued before me that for present
purposes there was any material difference in those concepts (but see, for completeness,
FMC Corporation v Russell 1999 SLT 99, Lord Bonomy at 101, where he drew a distinction
between conduct which was vexatious and that which was oppressive).
[20]
The first question for determination at this stage then becomes: has the petitioner
pled a prima facie case of unconscionable, vexatious or oppressive conduct by JFKL?
Pleadings of unconscionable, vexatious or oppressive conduct
[21]
The petitioner prays in aid a number of factors in support of its case that JFKL's
conduct in seeking and obtaining the Kenyan orders was vexatious and oppressive of the
group members, whom it was calculated to harass. (The petitioner also avers that JFKL has
11
breached its undertaking in the interdict petition, and amounts to an abuse of process here,
but those are perhaps matters for another day.) The factors relied on are as follows.
Delay in bringing the Kenyan proceedings
[22]
As is apparent from the above account of the history of the group proceedings, JFKL
has known of their existence for many months; indeed, it has known of the threat to raise
such proceedings since late 2021. Not only did it delay in seeking an anti-suit injunction, it
actively engaged in, and opposed, the group proceedings, only turning to the Kenyan courts
when it was achieving a lack of success before the Scottish courts. JFKL admits the delay,
under explanation that if it had been successful in opposing the allowance of group
proceedings there would have been no need for it to obtain the orders in Kenya that it did.
However, that does not address the points (a) that it knew that it was unsuccessful in
opposing the allowance of the group proceedings in February 2022 but did not seek the anti-
suit injunction until more than five months later and (b) that the no-jurisdiction plea was not
taken in the Scottish proceedings until defences were lodged in June 2022. If it had wished
to argue a lack of jurisdiction, it had every opportunity to do so but did not avail itself o f
that opportunity.
Continuation of a campaign of frustration of legitimate court orders
[23]
The petitioner avers that JFKL has evinced a determination to stop any Scottish court
inquiring into its practices at its estates in Kenya. By way of example, the petitioner refers to
the sheriff court order referred to above for inspection of JFKL's premises by an ergonomics
consultant. That order (the making of which JFKL did not oppose) has not yet been
implemented, because JFKL obtained an injunction from the Ken yan Courts. JFKL's answer
12
is to say that the purpose of the Kenyan application was to ensure that the inspection was
carried out in accordance with Kenyan law, and that the Kenyan Court of Appeal merely
decided that the inspection could not be carried out without intervention by Kenyan
authorities. An appeal was made by the workers to the Kenyan Supreme Court on 16 June
2022. Counsel for the petitioner told me that he had observed part of the appeal proceedings
on-line and that the argument presented by the advocate for JFKL was largely based on the
allegation that the sheriff court had adopted a colonialist attitude, rather than an argument
peppered with hard law, as he put it. Wherever the truth of this matter lies, the
incontrovertible fact remains that the decision of the Supreme Court of Kenya is awaited,
and that an order which was granted some considerable time ago remains unimplemented
because of JFKL's opposition to it in Kenya.
Misrepresentation in the Application in the Kenyan petition
[24]
The petitioner maintains that JFKL failed in its duty of full and frank disclosure to
the Kenyan court in a number of respects.
Failure to disclose the reason why the interim orders were granted
[25]
It is now common ground that although the petition and the interlocutor granting
interim interdict were produced to the Kenyan court, the affidavits, which supported the
petitioner's claims that JFKL had been engaging in systematic intimidating and threatening
conduct, and destroying evidence, were not produced. Likewise, JFKL failed to disclose that
it had failed to seek to recall or vary the interim interdict (which it asserted in the
application was too wide) or that it had agreed to pay the expenses of the petition (generally
an indication of an acceptance that the proceedings were justified).
13
[26]
Although the undertaking was referred to, the application did not state that it was in
substantially the same terms as the interim interdict had been. Reference was however
made to the words added to the undertaking, referred to in paragraph [11] above, insofar as
the application stated that it allowed JFKL to take "lawful, legal actions or steps in
accordance with due process available in the courts of either Scotland or Kenya". Although
the petitioner did not take this point, I observe that that was not how the undertaking had
been worded, in that the words "lawful, legal actions or steps" did not feature in it: had
they been, the petitioner might have realised the purpose of the insertion and been alerted to
JFKL's intention to raise anti-suit proceedings in Kenya. On any view, however, the
wording of the application contained a gloss on the wording of the undertaking which it
was unnecessary to add, and one wonders why that was done. (As a further aside, when
that paragraph of the undertaking is read again, in the cold light of day, it does appear to
have the express aim of permitting JFKL to act in a manner which is calculated to cause fear,
alarm or distress to those on the group register with the intention of dissuading them from
continuing with the group litigation, provided it does so in accordance with due process of,
reading short, the court in Kenya; which of course, is precisely what the petitioner avers was
the purpose of the Kenyan anti-suit injunction).
Misrepresentations in the affidavit evidence presented to the Kenyan Court
[27]
In Mr Hutchinson's affidavit lodged in support of the Kenyan application it was
asserted that the "Scottish Court issued a further interim ex parte injunctive order barring
[JFKL] from disciplining or terminating the services of any of JFKL's employees". As the
petitioner asserts, that statement was patently untrue and was calculated to represent that
the Scottish courts had been unfairly interfering in due processes in Kenya. As has been
14
seen, the interdict was in truth against intimidation and threatening group members with
loss of employment because they were joining or had joined the group proceedings. The
affidavit was also misleading (or at least, incomplete) in other respects. In stating that the
interim interdict had been granted ex parte at a hearing at which JFKL was not represented, it
failed to mention that JFKL had subsequently lodged answers to the petition and had the
opportunity (which it did not take) to seek recall or variation if it considered the interdict to
be too wide. It failed to mention, as did the application, that JFKL had agreed to pay the
expenses of the application. On one reading, the affidavit gave the impression (at
paragraph 13) that the Scottish court had already decided issues of jurisdiction and forum
non conveniens. It also gave the impression (at paragraph 22) that the Scottish court might
make orders which might affect legal and industrial relations situation in Kenya. JFKL
points out that copies of the interim interdict and of the undertaking were attached to the
affidavit, which is true. Nonetheless there was some force to the submission of counsel for
the petitioner that in a busy court, discrepancies between the fine detail of productio ns or
exhibits and the statements in the affidavit might not readily be identified; and in any event,
that does not excuse the erroneous or misleading statements in the affidavit.
The basis for the petition in Kenya
[28]
Aside from misrepresentation of the facts in the Kenyan application, the petitioner
avers that it is punctuated by irrelevant and legally incorrect representations, chiefly that the
group members are obliged to sue (by statute and by constitution) in Kenya. However,
under reference to the opinion from Dr Mutunga, referred to above, those arguments are
said to be ill-founded in Kenyan law. JFKL also asserted to the Kenyan court that it would
be required to transfer data on its employees to foreign representatives of JFKL and to the
15
Scottish court, without mentioning that the subject of the data can consent to its release
under Kenyan law or that the Scottish courts can cater for such matters by use of
confidential envelopes. JFKL denies those averments. It has its own expert opinion, from
Professor Githu Muigai, to the effect that the group members are obliged to sue in Kenya.
Which opinion is to be preferred is not a matter for me to rule upon at this stage, but I do
note, for what it is worth, that the petitioner has an evidential basis for its averments.
Continued harassment of employees
[29]
The petitioner avers that in addition to the complaints of harassment in the interdict
petition, another employee, Mr Epari, was subjected to continued harassment and
intimidation at around the time the interdict was granted. On 31 March 2022 he is said to
have received a letter from JFKL dismissing him from his employment because he had
initiated an action against it. When he took issue with this, his employment was reinstated
but he was asked to return the letter, which he said he had lost. His home was subsequently
broken into and the letter (but nothing else) was stolen. This is vigorously denied by JFKL.
Again, I cannot decide at this stage where the truth lies. Affidavits vouching both claim and
counterclaim have been lodged.
[30]
In addition to the averments in the petition, counsel for the petitioner asserted ex
parte that as recently as 17 August 2022, another group member, a Ms Mogendi, had felt
intimidated when visiting a medical centre owned and run by JFKL, for a pre-booked
appointment seeking examination of on-going back pains. The doctor unnecessarily
referred to the fact that she was a group member, and that she would never be paid. JFKL
has not yet had the opportunity to investigate this allegation.
16
Use of the Group Register as a means of harassment
[31]
The petitioner avers that the orders obtained in the Kenyan proceedings have
enabled JFKL to use information on the group register for a wholly illegitimate and
unnecessary purpose. It has listed the names on the register (under the guise of intimating
the proceedings to the group members) in an advertisement in a national newspaper and
has posted the names of all group members on various notice boards within JFKL's
premises. This is said to constitute unfair processing of data, which has caused distress and
worry to the individuals on the notices. Under reference to Duff & Phelps, Minuter 2022
SLT 450 and Iomega Corp v Myrica (UK) Ltd 1998 SC 636, counsel for the petitioner submitted
that the register, being a document in process, was under the control and supervision of the
court and could not be used for another purpose, as it had been here, without the court's
permission.
[32]
Counsel for JFKL acknowledged that this court's permission ought to have been
obtained before the information on the register was used, and apologised for that omission.
(I observe that if permission had been sought, that would have entailed notice being given of
the Kenyan proceedings, and I am unwilling at this stage to attribute the non-seeking of
permission to mere oversight or inadvertence.) Beyond that, JFKL's position is that
publication of the names was made pursuant to the order of the Kenyan court and that
service on the individuals concerned could not have been avoided under Kenyan procedure.
Two points may be made about that. First, as the petitioner points out, JFKL's solicitors
could have asked the petitioner's solicitors if they would accept service of the Kenyan
proceedings, or could simply have served the application on the petitioner alone. Second, it
is unclear why an order was requested that all names be published on JFKL's notice boards
when it is accepted by JFKL that many of the group members are no longer employed by it.
17
[33]
Before leaving the notice boards, this is a convenient point at which to note that
when the petition first called before me on 15 August 2022, various undertakings were given
(by both parties) pending a full hearing of the motion for interim orders on 19 August 2022.
One of those undertakings was that JFKL forthwith remove all the notices from the notice
boards. It is now accepted by JFKL that it failed to implement that undertaking, in that
some notices were not removed. Counsel for JFKL also tendered JFKL's apologies to the
court for this failure, which he ascribed to inadvertence. That may be so, although it may
betray a somewhat casual approach by JFKL to the need to comply to the letter with orders
of this court or undertakings given to it. Be that as it may, I accept that this does not go to
the heart of the issue currently before this court, although it may well be another question
for another day should the petitioner elect to take the matter further.
[34]
The petitioner also avers that the publication of the names of the group members has
endangered their wellbeing and safety. The group members are not members of the
Kalenjin tribe, which controls the area where JFKL's tea plantation is located. The
consequence of publication of the names of the group members is that they ar e now all
easily and readily identifiable as potentially posing a threat to the prosperity of the Kalenjin
tribe and it is said that there is a considerable risk that they will be targeted either to seek
retribution or to act as a deterrence to further claims being initiated in the Scottish court.
The foregoing is denied by JFKL.
Other proceedings
[35]
For completeness, I mention that the petitioner further asserts that JFKL has
previously sought to (mis)use the Kenyan Courts as a means of targeting workers who have
attempted to assert and vindicate their rights against it. However, that appears unrelated to
18
the group litigation and I have left those averments out of account in deciding whether or
not a prima facie case has been pled, since they are of dubious relevance.
Submissions for the petitioner
[36]
Counsel for the petitioner submitted that JFKL's conduct in raising the anti-suit
injunction was, in the circumstances just set out, oppressive, vexatious and unconscionable.
It was clearly another step designed to intimidate group members, and to inhibit them from
continuing with the group litigation. It was impracticable for all 1,044 respondents to
oppose the Kenyan injunction. Taking instructions would be well-nigh impossible, and it
was unclear how the cost of opposition would be funded. The test laid down in Turner was
met. At the time of giving its undertaking in the interdict process, JFKL evidently had the
intention of bringing the anti-suit proceedings as was now plain from insertion of the
reference to due process. The Kenyan proceedings, as had the Madrid proceedings in
Turner, been raised in bad faith for the sole purpose of obstructing the on-going proceedings.
It was necessary to grant the order sought in order to protect the legitimate interest of the
petitioner (and of the group members) that the group proceedings continue. Group
procedure did not exist, nor would funding be available, in Kenya. A strong prima facie case
had been made out.
[37]
As far as balance of convenience was concerned, this favoured the petitioner. The
reality was that if the group proceedings were not allowed to continue, litigation in Kenya
would not be possible. The group members would suffer grave prejudice if unable to
continue the Scottish litigation. There was no prejudice to JFKL. It was well able to advance
its arguments about jurisdiction in the group proceedings. If those arguments were sound,
that would be an end to the group litigation.
19
Submissions for the respondent
[38]
Counsel for the respondent submitted that the petitioner had but a weak prima facie
case. The central contention of the petitioner that Scotland's legal system was superior to
that of Kenya was unsound. The essence of the petitioner's case had to be that whereas the
natural home of the litigation was Kenya since the substantive case in the group
proceedings was based wholly on Kenyan law, the group members were all Kenyan and the
witnesses would primarily be Kenyan nonetheless JFKL's position in respect of the claims
being litigated in Kenya was unconscionable, vexatious and oppressive. There was no
reason to suppose that the Kenyan courts would not give proper consideration to the group
members' claim that the Kenyan courts did not have exclusive jurisdiction or that Scotland
was the appropriate forum. It was far more desirable that the Kenyan court give a definitive
ruling on a question of Kenyan law, than that the Scottish court should attempt to reach a
non-definitive ruling on the basis of competing expert evidence as to what Kenyan law was.
As paragraph 25 of Turner made clear, one situation where an anti-suit injunction would be
granted was where an exclusive jurisdiction clause granted jurisdiction on another court:
that was JFKL's contention here. Further, group proceedings and legal aid are both
available in Kenya.
[39]
As regards balance of convenience, taking into account the weakness of the prima
facie case, it favoured the respondent. Were interim interdict pronounced, the court would
lose the benefit of the Kenyan court's views on matters of Kenyan law. There was no
urgency in the Scottish proceedings being allowed to continue at this time. Claims would
not prescribe as new group members could enter the proceedings. The pleas of no
20
jurisdiction and forum non conveniens would in any event have to be considered before the
court could begin addressing the merits. Interim interdict should be refused in hoc statu.
Decision
Prima facie case
[40]
To dispose first of the submission for JFKL as to the petitioner's so-called central
contention, the petitioner's argument is not founded on a contention, nor do I proceed on
what would in any event be an unwarranted basis, that Scotland's legal system is superior in
some way to that of Kenya. Further, counsel for the petitioner expressly disavowed any
suggestion that the Kenyan courts would not approach the anti-suit injunction in a proper
manner. As the above narration of the factors relied upon by the petitioner makes clear, the
petitioner's criticisms are entirely directed at JFKL. Essentially, the petitioner's case as to
why continuation of the Kenyan proceedings would be oppressive is as follows: first, that in
making the orders which it did, the Kenyan court was, in effect, led up the garden path by
JFKL; second, that although the orders (for example, as to intimation of the names) were
lawfully granted by the Kenyan court, JFKL had an ulterior motive in obtaining those
orders, namely to harass and intimidate the group members, against a background of
alleged intimidation and harassment designed to dissuade group members or prospective
group members from participating in the group litigation; and further, that JFKL misused
information on the group register to achieve that goal; and third, that for the Kenyan court
to do justice to the arguments before it, the proceedings would require to be opposed in a
meaningful sense which is unlikely to be possible due to practical difficulties in obtaining
instructions and funding.
21
[41]
As I have noted, counsel for JFKL also submitted that the petitioner's case was that it
is oppressive that the substantive claims be litigated in Kenya. That is not the petitioner's
case. The petitioner accepts that JFKL has the right to argue that the claims should be
litigated in Kenya; what the petitioner claims is oppressive is JFKL's conduct in raising the
jurisdictional issue and attempting to have it decided there, rather than in the Court of
Session where the only substantive actions currently in existence are on-going.
[42]
Turning, then, to what the petitioner's case is, his averments of oppressive conduct
rely, in particular, on:
the delay in raising the Kenyan proceedings;
the alleged history of intimidation;
the repeated attempts to thwart orders of the Scottish courts;
the revision of the undertaking, which clearly shows that the anti-suit
injunction was in contemplation at that point;
misuse of the group register;
the selective and in some respects misleading information which was
provided to the Kenyan court.
If proved, these averments are easily capable of founding the inference that JFKL's conduct
in raising the Kenyan proceedings was vexatious, oppressive and unconscionable. I
consider that the petitioner has made out a strong prima facie case.
Balance of convenience
[43]
Turning to consider the balance of convenience, the group proceedings cannot
continue for so long as the Kenyan anti-suit injunction remains in place. That in itself will
cause prejudice to the group members. To quote the oft-used phrase: justice delayed is
22
justice denied. If the Scottish proceedings are allowed to resume, the next stage is that a
preliminary hearing will be heard at which the court will regulate future procedure. Given
the pleas of no jurisdiction and forum non conveniens, and without pre-empting what the
Lord Ordinary may or may not do, that procedure is likely to entail either a debate or a
preliminary proof to dispose of those pleas. There is no discernible prejudice to JFKL, a
Scottish company which has already engaged Scottish lawyers, in being required to present
its arguments on jurisdiction to the Scottish court. It is able to afford to do so. It has already
obtained an opinion as to the applicable Kenyan law. Conversely, there is at the very least a
serious doubt as to whether the group members would be able to bring substantive damages
claims in Kenya. There are also likely to be serious practical difficulties in their giving
instructions for opposition to the anti-suit injunction, and in obtaining funding to do so.
Even if those difficulties can be overcome it is likely to take some time for the legal
representatives acting in Kenya to obtain 1,044 sets of instructions. That in itself may well
lead to a delay in the Kenyan anti-suit proceedings being concluded.
[44]
For all of these reasons, and also taking into account the strength of the prima facie
case, I consider that the balance of convenience clearly favours the petitioner.
[45]
There is one final matter. The argument for JFKL that the Kenyan courts are best
placed to decide whether Kenya has exclusive jurisdiction is superficially seductive.
However, I consider it to be undermined by what I take to be a general acceptance that it is
for the courts of the place where an action has been brought, in this case the Court of
Session, to decide whether it has jurisdiction (in this case, over a company, be it
remembered, which is domiciled in Scotland), not for a foreign court to determine that issue:
cf Turner, above, at para [26]. The point being made there of course was that it was not for
23
an English court to determine the jurisdiction of a Madrid court but the observation of
Lord Hobhouse is of general application:
"For the foreign court, its jurisdiction and whether to exercise that jurisdiction falls to
be decided by the foreign court itself in accordance with its own laws...Restraining
orders come into the picture at an earlier stage and involve not a decision upon the
jurisdiction of the foreign court but an assessment of the conduct of the relevant
party in invoking that jurisdiction."
It seems to me that the obverse also applies, namely, that this court has an interest in
protecting its own jurisdiction (a theme which emerges from the case law: see para [15]).
Counsel for JFKL acknowledged that it would at the very least be unusual for a foreign court
to decide the issue of whether a Scottish court has jurisdiction. This is a further factor
pointing towards the grant of interim interdict.
Disposal
[46]
Having reached the view that the petitioner has a strong prima facie case, and that the
balance of convenience favours him, it follows that interim orders and an order under
section 46 of the Court of Session Act 1988 are appropriate. As requested by counsel, I will
put the case out by order to discuss the precise terms of the orders to be made.
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