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A Scottish court published a decision that pauses the case against James Finlay in Scotland, pending a case in Kenya. The court left open the possibility that proceedings could continue in Scotland if workers faced excessive delays or other significant access to justice concerns. The plaintiffs have not announced whether they intend to appeal the case to the Supreme Court. This is an update to our September alert on this case.   

  • In September we reported that the Scottish Court of Session, Outer House ruled that a legal case against Scottish based tea company, James Finlay Kenya Ltd could proceed in Scotland. The case was brought on behalf of 1,300 former and current workers for injuries sustained in the company’s Kenyan tea plantations as a result of unsafe working practices.  
  • James Finlay appealed this decision to the Scottish Court of Session, Inner House (the highest civil appeal court in Scotland), which published its decision on 7 November. The court decided to pause the proceedings on jurisdiction grounds, meaning that they are now on hold until proceedings are resolved in Kenya.

 

Decision

  • The July ruling was based on whether workers could achieve substantial justice in Kenya. The Judge determined that legal aid and funding are not as readily available in Kenya and this would mean that workers are not able to achieve substantial justice in a court proceeding which typically entails substantial costs. The Judge determined that the Work Injury Benefits Act (WIBA), a Kenyan administrative system to provide no-fault compensation for work-related injuries, did not apply to this category of injury. 
  • In the November ruling, the Judges determined that that workers could indeed achieve substantial justice in Kenya. This was based on the finding that the WIBA system did apply to these workers, which addresses the concern of funding since WIBA does not entail any costs or require lawyers. The Judges determined that Kenya is a more appropriate forum for this case since Scottish judges would have difficulty applying this unfamiliar system. If they are unsuccessful, plaintiffs have the option to appeal the decision to the Employment and Labour Relations Court in Kenya.  
  • The Judges recognised that compensation available to some claimants under WIBA will likely be much lower than if they were able to claim additional damages for pain and suffering and other damages available in Scotland, but that a no-fault system provides greater certainty and the availability of some compensation for everyone with a work-based injury. This was not a reason to consider that the system did not meet the requirement of substantial justice.  The Judges left open the possibility that if the claims are not assessed as required under the WIBA scheme, or if there are excessive delays, “the court may have to revisit the question of substantial justice” and determine whether to hear the case in Scotland. 
  • The workers have the option to appeal the case to the Supreme Court. Representatives for the workers have not yet announced whether they intend to appeal.  

 

Additional context  

  • We are not seeing consistent rulings in the United Kingdom on RBC cases and this indicates that the courts are still determining the scope of parent company liability, and in particular when jurisdiction applies. We recently reported on the English Dyson decision, in which a High Court of Justice judge also determined that a case could not be heard in England since substantial justice could be achieved for workers in Malaysia.  
  • The workers are represented by law firm Thompson Solicitors Scotland, which specialises in personal injury litigation, including workplace injury. 
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