About this case

Case name

Hugh Hall Campbell KC (as representative party of the James Finlay (Kenya) Limited Tea Estate Workers Group Proceedings case) v James Finlay (Kenya) Limited

Case reference numbers

GP1/22, P305/22 and P657/22

Dates of hearings

• Friday 26 January 2024
• Wednesday 11 October 2023
• Friday 25 August 2023

Single Bill Hearing

This is a Single Bill Hearing to address the opposed application for permission to appeal to the United Kingdom Supreme Court against the decision of 7 November 2023.

Division

First

Judges

Lord President, Lord Pentland and Lord Doherty

Agents and Counsel

For the Pursuers

• Agents: Thompsons Solicitors, Scotland
• Counsel: Andrew Smith KC, Cameron Smith and Adam Black

For the Defenders

• Agents: CMS Cameron McKenna Nabarro Olswang LLP
• Counsel: Lord Davidson KC, Alasdair McKenzie KC and Emma Boffey

Case description

This is a reclaiming motion (appeal) from the decision of the Lord Ordinary (Lord Weir) dated 11 July 2023.

The respondent is the representative party for a group of tea plantation workers who are employed by James Finlay (Kenya) Limited. The employees seek compensation for musculoskeletal injuries they say they sustained whilst working for JFKL.

JFKL challenged the Court of Session’s jurisdiction to hear the claims. This was said to be on the basis that the group members and the reclaimers had entered into contracts of employment in which it was agreed that any claim for injury or illness would be processed under the Kenyan Work Injuries Benefits Act 2007. They argued that this meant that the employees had agreed to the jurisdiction of the Kenyan courts in relation to any claim for any work-related injuries they sustained. JFKL advanced an alternative argument that the Court of Session was forum non conveniens (not the appropriate forum for the dispute to be heard). They contended that it was clearly and distinctly more appropriate for the claims to be determined in Kenya, that being the country with which their claims had the most real and substantial connection.

The Lord Ordinary rejected these arguments. He determined that musculoskeletal injuries were not covered by the Act, and so the employees were not bound to bring their claims in Kenya in accordance with the Act. Although there were factors that clearly pointed to Kenya as being the appropriate forum, there were issues concerning the employees’ available resources to fund claims in Kenya and a lack of available legal representation in Kenya. This led the Lord Ordinary to conclude that there was a real risk that the employees would not obtain substantial justice if they had to bring their claims in Kenya. He allowed the claims to proceed in the Court of Session.

JFKL appeal that decision. The employees also cross-appeal the Lord Ordinary’s decision to refuse their application for certain expenses on the basis that it was premature.

The First Division will hear the appeal and the cross-appeal on Wednesday 11th and Thursday 12th October 2023.