This week, a group proceedings application in Scotland was granted by the Court of Session. Class actions are well established in many other countries, but the Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018, allowing group proceedings in Scotland, only came into effect in July 2020.
The decision will allow hundreds of Kenyan farm workers to start group proceedings against one of the world's biggest tea producers, James Finlay (Kenya) Ltd. Finlays is a multi-national company which can trace its origins back to James Finlay, a cotton merchant who founded the business in Scotland in 1750. Finlays is a Scottish company incorporated in 1925 with a registered address in Aberdeen.
The workers allege unsafe working practices, conditions and systems of work at tea plantations in Kenya which are said to have given rise to musculoskeletal injuries amongst current and former employees. A previous hearing at the Court of Session had heard the pickers claim they were routinely asked to work up to 12 hours a day without a break, for six days a week, earning an average monthly wage of £100. They allege that they were expected to harvest a minimum of 30kg of tea before being paid anything at all.
The issues for determination in the prospective claims all concerned (i) the existence and content of the defender’s duty of care, and (ii) whether the employees were exposed to common working practices which created a foreseeable risk of injury. If the proceedings reach the evidential hearing stage it is understood that the applicable law will be the laws of Kenya.
Finlays deny any wrongdoing. They argued against the application. They argued that the proceedings lacked any real prospect of success and that many of the claims will have timebarred in any event. They also state that no decisions about the working environment in Kenya are taken in Scotland. They are still open to rely on the legal doctrine of forum non conveniens which would argue that the Court of Session, Edinburgh is not the correct court to hear and decide the case.
A further hearing will take place to allow for the proposal of a new representative party but presuming that issue can be resolved, then the action will proceed to deal with the substantive issues of negligence, causation and quantum.
Seven workers have already brought individual actions in the All Scotland Sheriff Personal Injury Court in Edinburgh.
If you have suffered an injury at work as a result of unsafe working practices, please contact Stephanie Watson on 0131 297 5988 or swatson@thorntons-law.co.uk. Alternatively, contact the Personal Injury Team on 0800 731 8434 who will be pleased to assist further or click here for further information.
