The introduction of class proceedings (class actions) in Scotland in 2020 has given litigation savvy claimants another choice of forum in which to bring a class action. Under the new procedure, groups of two or more people with the same, similar or related claims can join together to bring a single action in the Court of Session, Scotland’s highest civil court.
As many countries may have jurisdiction over the same dispute, on a variety of different grounds, this may (and indeed has already) led to class actions underway in Scotland although they appear to be more closely related to another jurisdiction. Like us wrote earlier this year, claimants can and do have a “forum shop” choosing the forum and process to resolve their claim based on the effectiveness of the process, how quickly they will obtain financial relief, where and how they will obtain the best financial recovery, and cost exposure.
An anti-prosecution injunction closed
The Court of Session recently demonstrated its powers to restrict foreign lawsuits in a class action. In Hugh Hall Campbell QC (as representative party) v James Finlay (Kenya) Limited (“JFKL”), a group of over 1,000 tea plantation workers brought a class action in the Court of Session against their employer/former employer, JFKL, a limited company registered in Scotland, relating to musculoskeletal injuries -skeletal injuries allegedly suffered during their employment in Kenya. The Court of Session allowed the class action to be commenced in February 2022, and JFKL failed to appeal the decision to grant leave in May 2022.
JFKL then sought and obtained an anti-suit injunction in the Kenyan courts, preventing the appointed representative for the class (Mr Campbell QC) from pursuing the class action in Scotland, pending a decision by the Kenyan courts as to whether the Court of Session has jurisdiction to hear the class action. This anti-suit injunction was granted without notice being given to Mr Campbell, and had the effect of preventing him from advancing the class action in Scotland on behalf of the class.
Mr Campbell therefore himself applied for a stay of proceedings (the Scottish equivalent of an injunction) in the Court of Session, seeking to prevent JFKL either from pursuing its claim in Kenya to determine jurisdiction, or from bringing any new procedure that would have the same effect.
The Court of Hearing tenuous in August 2022 that he has “the power to grant an anti-prosecution injunction or restraining order… where the continuation of the relevant proceedings is vexatious or oppressive”. He granted the requested anti-prosecution stay, finding that Mr. Campbell had established a prima facie case that JFKL’s conduct in raising the proceedings in Kenya was impermissible, vexatious or oppressive. The court found that, if proven, the allegations made regarding JKFL’s alleged bullying and harassment of band members, as well as other conduct, were “easily able” to start a business. The balance of convenience also favored the granting of the prohibition. While the Kenyan anti-suit injunction remained in place, the band members were unable to pursue their claim in Scotland, and there were serious doubts about their ability to bring claims for substantial damages. in Kenya. JFKL, on the other hand, would not be harmed to the same extent if the ban were to be granted.
The principle: the Court of Session will protect its own jurisdiction
This case is a salutary reminder that the Scottish court will protect its own jurisdiction in class actions as well as any other type of claim. The court noted that “it is up to the courts of the place where the action is brought, in this case the Court of Session, to decide whether it has jurisdiction (in this case, with regard to a company, let us recall, domiciled in Scotland), not for a foreign court to decide this question”.
Businesses operating in a global market should be aware that multiple class actions may be launched in multiple jurisdictions, and from 2020 this includes Scotland. A clear strategy to manage and mitigate risks is needed in this new litigation landscape.