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You are here: BAILII >> Databases >> England and Wales High Court (King's Bench Division) Decisions >> Limbu & Ors v Dyson Technology Ltd & Ors [2023] EWHC 2592 (KB) (19 October 2023) URL: https://www.bailii.org/ew/cases/EWHC/KB/2023/2592.html Cite as: [2023] EWHC 2592 (KB) |
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KING'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
(Sitting as a Deputy High Court Judge)
____________________
DHAN KUMAR LIMBU & 23 OTHERS |
Claimant |
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- and - |
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(1) DYSON TECHNOLOGY LIMITED (2) DYSON LIMITED (3) DYSON MANUFACTURING SDN BHD |
Defendants |
____________________
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
____________________
Crown Copyright ©
Clive Sheldon KC:
I. The Proceedings
(i) D1 and D2 will submit to the jurisdiction of the Malaysian courts if they are sued there;
(ii) The Dyson Defendants will not seek security for costs or an adverse costs order against the Claimants if and to the extent such costs would not be recoverable under the Qualified One Way Cost Shifting regime in England;
(iii) The Dyson Defendants will pay the reasonable costs necessary to enable the Claimants to give evidence in Malaysian proceedings including (if necessary) affidavit affirmation fees and other costs necessary for the Claimants to give remote evidence including travel and accommodation costs, costs associated with the provision/set-up of suitable videoconferencing technology and other costs associated with the logistics of giving evidence remotely;
(iv) The Dyson Defendants will not oppose an application by the Claimants for remote attendance at a hearing/the trial in Malaysian proceedings;
(v) The Dyson Defendants will pay for the Claimants' share of the following disbursements to the extent reasonably incurred and necessary: (a) Court interpretation fees, (b) Transcription fees, and (c) Joint expert evidence; and
(vi) The Dyson Defendants will not seek to challenge the lawfulness of any success fee arrangement entered into between the Claimants and their Malaysian lawyers.
A further undertaking was given in the course of the hearing before me: that the Dyson Defendants would not oppose an application for a split trial.
(a) The expert reports of (i) Tun Arifin Bin Zakaria, former Chief Justice of Malaysia between September 2011 and March 2017; (ii) Dato' Mah Weng Kwai, a former judge of the Malaysian Court of Appeal (2012 to 2015, having served as a High Court Judge since 2010), and former President of the Malaysian Bar and member of the Malaysian Bar Council's (Bar Council) Disciplinary Board; (iii) Tun Richard Malanjum, former Chief Justice of Malaysia between July 2018 and April 2019; and (iv) Dato' Malik Imtiaz Sarwar, a senior Malaysian lawyer.
(b) Witness statements from (i) Mr Chandrasegaran A/L Rajandran, a Malaysian lawyer with considerable experience acting for groups of Malaysian workers in Malaysia; (ii) Mr Tony Woon Yeow Thong, a Malaysian lawyer and former Chairperson of the Malaysian Bar Council's Ad Hoc Committee on Contingency Fees Rules; (iii) Ms Chew Kherk Ying, a Malaysian lawyer; (iv) Mr John Leadley, a partner at Baker & McKenzie LLP, representing the Dyson Defendants; (v) Ms Francesca Richmond, a partner at Baker & McKenzie LLP; (vi) Mr Adrian Pereira, Executive Director and Founder of the North-South Initiative (NSI), a Malaysian NGO; (vii) Ms Glorene Amala Das, Executive Director of Tenaganita Sdn Bhd (Tenaganita), a Malaysian NGO; (viii) Ms Liva Sreedharan, an independent labour rights specialist based in Malaysia; (ix) Mr Surenda Ananth, a Malaysian lawyer in a Group Law Practice with Messrs Malik Imtiaz Sarwar; (x) Ms Renuka T. Balasubramaniam, a former Malaysian lawyer and academic; (xi) Mr Shakirul Islam, Chairperson of Ovibashi Karmi Unnayan Program, a Bangladeshi NGO; (xii) Mr Shom Prasad Luitel, a practising Nepalese lawyer and former chairperson of People Forum, an NGO in Nepal; (xiii) four of the Claimants: Mr Dhan Kumar Limbu, Mr Md Didar Hossain, Mr Mohammad Abu Taher, and Ms Sonu Tamang; and (xiv) Mr Oliver Holland, a partner at Leigh Day, representing the Claimants.
II. The defamation proceedings
(i) they were complicit in the systemic abuse and exploitation of workers at ATA, one of their suppliers located in Malaysia;
(ii) they were also complicit in the persecution and torture of a worker who blew the whistle on the working practices at ATA; and
(iii) they, or alternatively D1, claim to act in a responsible and ethical way but when serious abuses of workers were brought to their attention these abuses were not properly investigated but were ignored and tolerated for a prolonged period of time while they tried to cover them up and shut down public criticism.
III. The Law as to Jurisdiction
"Those include matters of practical convenience such as accessibility to courts for parties and witnesses and the availability of a common language so as to minimise the expense and potential for distortion involved in translation of evidence. Although they are important, they are not necessarily conclusive. Connecting factors also include matters such as the system of law which will be applied to decide the issues, the place where the wrongful act or omission occurred and the place where the harm occurred."
"The governing law, which is here English, is in general terms a positive factor in favour of trial in England, because it is generally preferable, other things being equal, that a case should be tried in the country whose law applies. However, that factor is of particular force if issues of law are likely to be important and if there is evidence of relevant differences in the legal principles or rules applicable to such issues in the two countries in contention as the appropriate forum."
"I therefore start from the position that, at least as a general rule, the court will not refuse to grant a stay simply because the plaintiff has shown that no financial assistance, for example in the form of legal aid, will be available to him in the appropriate forum, whereas such financial assistance will be available to him in England. Many smaller jurisdictions cannot afford a system of legal aid.
. . .
Even so, the availability of financial assistance in this country, coupled with its non-availability in the appropriate forum, may exceptionally be a relevant factor in this context. The question, however, remains whether the plaintiff can establish that substantial justice will not in the particular circumstances of the case be done if the plaintiff has to proceed in the appropriate forum where no financial assistance is available.
This is in effect what was urged upon your Lordships in the present case. It is clear that the nature and complexity of the case is such that it cannot be tried at all without the benefit of financial assistance. There are two reasons for this. The first is that . . . there is no practical possibility of the issues which arise in the case being tried without the plaintiff having the benefit of professional legal assistance; and the second is that his case cannot be developed before a court without evidence from expert scientific witnesses. It is not in dispute that in these circumstances the case cannot be tried in Namibia; whereas, on the evidence . . . it appears that if the case is fought in this country the plaintiff will either obtain assistance in the form of legal aid or, failing that, receive the benefit of a conditional fee agreement with his solicitor. . . . I am satisfied that this is a case in which, having regard to the nature of the litigation, substantial justice cannot be done in the appropriate forum, but can be done in this jurisdiction where the resources are available.
If the position had been, for example, that the plaintiff was seeking to take advantage of financial assistance available here to obtain a Rolls Royce presentation of his case, as opposed to a more rudimentary presentation in the appropriate forum, it might well have been necessary to take a different view. But this is not the present case. There is every reason to believe that this case calls for highly professional representation, by both lawyers and scientific experts, for the achievement of substantial justice, and that such representation cannot be achieved in Namibia. In these circumstances, to revert to the underlying principle, the Namibian forum is not one in which the case can be tried more suitably for the interests of all the parties and for the ends of justice."
"The clear, strong and unchallenged view of the attorneys who provided statements to the plaintiffs was that no firm of South African attorneys with expertise in this field had the means or would undertake the risk of conducting these proceedings on a contingency fee basis. The defendant suggested that financial support and professional assistance might be given to the plaintiffs by the Legal Resources Centre, but this suggestion was authoritatively contradicted. In a recent affidavit the possibility was raised that assistance might be forthcoming from the European Union Foundation for Human Rights in South Africa, but the evidence did not support the possibility of assistance on the scale necessary to fund this litigation.
If these proceedings were stayed in favour of the more appropriate forum in South Africa the probability is that the plaintiffs would have no means of obtaining the professional representation and the expert evidence which would be essential if these claims were to be justly decided. This would amount to a denial of justice. In the special and unusual circumstances of these proceedings, lack of the means, in South Africa, to prosecute these claims to a conclusion provides a compelling ground, at the second stage of the Spiliada test, for refusing to stay the proceedings here."
"these claims could in theory be litigated in Kenya in the sense that procedures exist for litigating group actions, and that there is sufficient local expertise to enable the OLA (K) claim against D2 to be brought, and to enable suitable medical experts to advise on Cs' injuries. I accept that no local firm is big enough to litigate this claim on its own, and that it would therefore be necessary for Cs to be represented by a consortium of firms. This would not be ideal, but it would not deprive Cs of substantial justice."
However, with respect to funding, Elisabeth Laing J. held at §171 that:
"while it is likely some corners could be cut, the claims will be expensive and complex to prepare. I consider that, on the evidence, there is a real risk that Cs would not be able to afford to bring these claims in Kenya. I do not consider that they should be required to make unlawful arrangements for conditional fee agreements. There is no functioning legal aid system. There is no evidence which satisfies me that money could be found to enable Cs to bring and prosecute these claims even as far as a trial on liability of a small number of test cases".
"first, the practicable impossibility of funding large group claims where the claimants were all in extreme poverty; and secondly, the absence within Zambia of sufficiently substantial and suitably experienced legal teams to enable litigation of this size and complexity to be prosecuted effectively, in particular against a defendant with a track record which suggested it would prove an obdurate opponent"
(as described by Lord Briggs in the Supreme Court at §89). Coulson J's judgment was upheld by the Supreme Court. Lord Briggs noted that, with respect to the issue of funding, Coulson J. had found that most forms of funding were unavailable, and that the one which was available -- "for the lawyers to take on the claimants as their clients on the payment of a small up-front fee; to pay for all of the disbursements, including expert evidence, out of their own pockets; and then to recover their costs when the claims were successful" (Coulson J. at §182) -- would not attract a legal team which (per Lord Briggs at §93) "was both prepared to act, and able do so with the requisite resources and experience" (see also Lord Briggs at §91). Coulson J. had concluded at §185 that:
"Considering the evidence as a whole, I conclude that it is fanciful to suggest that the ad-hoc method of funding could work in this case. This is complex and expensive litigation involving over 1,800 claims. Detailed evidence is going to be necessary in respect of personal injuries, land ownership and damage to land; and expert evidence as to pollution, causation and medical consequences. On the evidence before the court, it is quite unrealistic to suppose that the lawyers would fund such large and potentially complex claims, essentially out of their own pockets, for the many years that litigation might take to resolve".
III. The Parties' Submissions
(a) The Dyson Defendants' Submissions
(a) Malaysia was the location of the alleged tortious wrongdoing: Malaysia was where the conduct of ATA/J and the Malaysian police took place; where the Claimants were living and working when the breaches of Malaysian statutory law took place; and where any allegedly defective or negligent policies of the Dyson Defendants were implemented;
(b) five of the Claimants are in Malaysia, and none of the Claimants are in or have any connection with England. D3 is in Malaysia; and the relevant third parties (ATA/J and the Malaysian police) are in Malaysia;
(c) the applicable law governing the claims is Malaysian, and this differs from English law in material respects; in particular, the unjust enrichment claim brought by the Claimants is novel (in both jurisdictions), and the Malaysian courts have already diverged in one respect from the approach adopted by the English Courts with respect to unjust enrichment (applying the "absence of basis" approach in Dream Property Sdn Bhd v Atlas Housing Sdn Bhd [2015] 2 AMR 601 at §128-9); the negligence claims are novel (whether companies in one group can be responsible for the actions of a third-party supplier and the police) and questions of public policy are likely to arise; and the tort of intimidation is less well developed in Malaysia. Further, there is extensive reliance on Malaysian statutory and constitutional law which does not apply in England and is best considered by Malaysian courts.
(d) the relevant evidence is predominantly located in Malaysia, and obtaining evidence from ATA/J and the Malaysian police would be time consuming and costly, and with respect to the Malaysian police the Letter Rogatory process may not be successful due to issues of comity and/or state immunity;
(e) certain of the claims for contribution and/or indemnity against ATA/J and the Malaysian police can only be brought in Malaysia, and there is a risk that an English judgment for contribution against ATA/J would not be enforceable in Malaysia. As a result, the Dyson Defendants would have to re-establish liability to the Claimants in Malaysia, thereby creating a significant risk of irreconcilable judgments and serious injustice to the Dyson Defendants.
(b) The Claimants' Submissions
(i) There is a strong connection between the claims and England, which is where two of the Dyson Defendants are based and where many of the key relevant acts and omissions occurred: particular focus being placed on the creation, promulgation and enforcement of various policies and standards concerning working and living conditions in factory facilities and accommodation within the supply chain, which will have been carried out by employees of D1 and/or D2, situated in their offices in England;
(ii) Much, if not most, of the key witnesses and documentary evidence will be in England;
(iii) There is a significant risk of duplication and inconsistent judgments if the Claimants are required to pursue their claims in Malaysia given that it is likely that the same factual allegations will be investigated and determined by the English courts in the defamation proceedings;
(iv) There are no material differences between Malaysian and English law;
(v) The Claimants will be unable to participate in a trial in Malaysia in person, or remotely;
(vi) The defence of the claims will be conducted and coordinated from England;
(vii) Dyson Malaysia is a necessary and proper party to the claims against D1 and D2, and this reinforces that England is the appropriate forum;
(viii) None of the Dyson Defendants' arguments based on hypothetical future indemnity or contribution claims against ATA/J and/or the Malaysian police have any merit. With respect to ATA/J, D1 and D2 are not parties to any of the contracts with ATA/J; the most recent contract with ATA/J contains an exclusive jurisdiction clause requiring all disputes to be determined through arbitration in Singapore and not through the Malaysian courts; and a statutory contribution claim could be brought against ATA/J in England, and even if ATA/J did not submit to English jurisdiction, a judgment could be enforced in Malaysia. With respect to the Malaysian police, the evidence does not suggest that such a contribution claim is likely, and a significant majority of the Claimants (20 out of 24) do not make any allegation of mistreatment against the Malaysian police, and the allegations of mistreatment form a discrete part of the claims. Further, the Claimants challenge the argument that the Dyson Defendants would have to re-establish their claims against ATA/J and/or the Malaysian police and could not rely (whether in principle or practice) on the findings of the English Court.
(ix) There are no real obstacles to obtaining documents from ATA/J or the Malaysian police if the claims are pursued in England.
(i) The complexity of the Claimants' claims and the types of evidence, legal representation and disbursements which will be required in order to litigate against well-resourced, aggressive and obdurate defendants;
(ii) The Claimants' extreme poverty and their resulting inability to pay anything towards the cost of legal representation or necessary disbursements;
(iii) The Claimants' inability to obtain suitably qualified legal representation and funding of necessary disbursements in Malaysia:
(a) as legal aid is unavailable for these types of claim;
(b) as it is unlawful for a Malaysian lawyer to conduct the claim on a full contingency fee basis;
(c) a partial contingency fee basis is unlawful, and in any event is unavailable in practice because the Claimants could not afford to pay the non-contingent aspect of such an arrangement, and suitably qualified lawyers are unlikely to be prepared to expose themselves to the risks, both financial and professional, of representing the Claimants on such a basis;
(d) they would not obtain funding from NGOs.
(iv) The fact that the Malaysian rules and procedure regarding disclosure are unlikely to facilitate the fair determination of these claims, in which disclosure of documents held by the Defendants will be crucial;
(v) The Claimants' inability to participate effectively in a trial in Malaysia either in person or remotely, due to their fear of persecution, detention in inhumane conditions and deportation should they return to Malaysia.
Discussion
Spiliada Stage 1
Spiliada Stage 1: conclusion
Spiliada Stage 2
(i) Difficulties in obtaining justice for migrant workers
(ii) the claims were complicated and needed suitably qualified advocates, the lawyers who argued labour and migrant cases did not have the expertise necessary to deal with this kind of case, and teaming up was unlikely
(iii) it was not possible to case manage out complexity, and although personal injury cases could easily be divided into liability and quantum this was not possible for a claim of unjust enrichment, where establishing the extent of enrichment was part of the question of liability. A very substantial part of the case would involve unjust enrichment, and an estimate of 6 months for the trial had been given
(iv) there would be very significant disbursements, not least on expert fees; and there would be a need for forensic accounting for the unjust enrichment claim;
(v) the claims would involve considerable financial risk for the Claimants' legal representatives. They would have to commit thousands of hours of work, and be at risk that they would not recover them. Among other things, there would also be translation costs, hundreds of hours for reviewing documents, setting up hearings in Bangladesh. The fact that there was one witness who had said he would do the case was not sufficient.
(vi) the prospect of a small band of practitioners being willing to take the risk was reduced when considering that they would be opposed by Defendants without any effective limitation on resources, represented by one of the largest law firms in the world, and where aggressive and heavy-handed approach is likely to be taken in the defence of the proceedings
(vii) it was inappropriate to rely on the undertakings given by the Dyson Defendants. Paying for the disbursements does not touch the size of the financial risk. There was also a conflict of interest here, as the Claimants' legal representatives would be negotiating with the Defendants' legal representatives over the reasonableness of the costs incurred;
(viii) there was no cogent evidence that the gaps could be filled by NGOs.
(ix) In addition, the Claimants contended that partial CFAs were unlawful; and even if they were lawful, the basic fee to be paid cannot be nominal, and the fee that would have to be paid by the Claimants would be set at a level which was unrealistic.
Spiliada Stage 2 conclusion
Conclusion