Tea pickers' claim better brought in Kenya: Inner House
Kenyan tea pickers seeking compensation in the Scottish courts for injuries allegedly sustained due to their working conditions, have suffered a setback after the Inner House ruled that the Kenyan workplace compensation scheme ("WIBA") was the more suitable forum to rule on their dispute.
Allowing an appeal by the workers' Scottish-registered employers James Finlay (Kenya) Ltd, Lord President Carloway, Lord Pentland and Lord Doherty held that although the Court of Session had jurisdiction to hear the case, which is brought as a group litigation, the court should sist (suspend proceedings in) the action pending a decision in Kenya.
On the latter point the Lord Ordinary had repelled the defenders' plea that the Court of Session was forum non conveniens, finding that although a number of factors led to the conclusion that Kenya would be the more appropriate forum for the disposal of the claims, there was a real risk that members of the group would not obtain substantial justice should they be required to litigate individual claims in Kenya, due to their poverty and the non-availability of group proceedings.
Delivering the opinion of the court, Lord Carloway agreed with the Lord Ordinary that the court had jurisdiction: the workers' employment contract applied Kenyan law (which would have applied anyway), but did not stipulate the exclusive jurisdiction of the Kenyan courts.
On forum non conveniens, however, the court disagreed with the Lord Ordinary's conclusion that the claimants' musculo-skeletal injuries did not fall within the WIBA, an administrative scheme with an appeal to the court. Given the ambit of the scheme, it was impossible to conclude that a relatively common workplace injury was excluded just because there were no published criteria for the assessment of such injuries, when it was accepted that compensation was assessed in such cases. Thus the problems identified of raising first instance proceedings in the Kenyan courts did not arise.
This, Lord Carloway said, created a "jurisdictional dilemma" for the court. If the Court of Session dealt with the claims, it would have to do so as if applying the WIBA, but it had no experience of applying that scheme. In theory, the court could only award the same amount of compensation as would be awarded in Kenya. These matters pointed towards Kenya being the appropriate forum.
The appropriate course of action was therefore to sist the Scottish proceedings pending resolution of the claims under WIBA. The court could not say that the WIBA system was unable to provide the group members with substantial justice. If the claims were not determined in accordance with WIBA, or if there was excessive delay in their determination, the court might require to recall the sist. For now, the claims should be progressed in Kenya under WIBA, without the plea of forum non conveniens being finally determined.