Fiona Chute: Class actions in Scotland – forum shopping and anti-suit injunctions

Fiona Chute: Class actions in Scotland – forum shopping and anti-suit injunctions

Fiona Chute

The introduction of group procedure (class actions) in Scotland in 2020 has given litigation-savvy claimants another choice of forum in which to raise a class action. Under the new procedure, groups of two or more people with the same, similar, or related claims, can unite to raise proceedings in a single action in the Court of Session, Scotland’s highest civil court.

Given that many countries can have jurisdiction to hear the same dispute, based on various different grounds, this can (and, indeed, already has) led to class actions being pursued in Scotland despite appearing to be more closely connected to another jurisdiction. As we wrote earlier this year, claimants can and do “forum shop” by choosing the forum and procedure to resolve their claim depending upon the efficiency of the procedure, how quickly they will obtain financial redress, where and how they will obtain the greatest financial recovery, and exposure to costs.

An anti-suit injunction full circle

The Court of Session has recently demonstrated its powers to restrain foreign court proceedings in the context of a class action. In Hugh Hall Campbell QC (as representative party) v James Finlay (Kenya) Limited (“JFKL”), a group of over 1,000 tea farm workers have raised a class action in the Court of Session against their employer/former employer, JFKL, a limited company registered in Scotland, in respect of musculo-skeletal injuries alleged to have been sustained in the course of their employment in Kenya. The Court of Session granted permission for the class action to be raised in February 2022, and JFKL was unsuccessful in an appeal against the decision to grant permission in May 2022.

JFKL then sought and was granted an anti-suit injunction in the courts of Kenya, preventing the representative party appointed for the group (Mr Campbell QC) from continuing to pursue 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 any notice having been given to Mr Campbell, and had the effect of preventing him from advancing the class action in Scotland on behalf of the group.

Mr Campbell therefore himself sought an anti-suit interdict in the Court of Session, seeking to prevent JFKL from either proceeding with its application in Kenya to decide on jurisdiction, or from raising any new proceedings that would have the same effect.

The Court of Session held in August 2022 that it does have “the power to grant an anti-suit injunction or interdict … where the pursuit of the relevant proceedings is vexatious or oppressive”. It granted the anti-suit interdict being sought, finding that Mr Campbell had established on the face it a case that JFKL’s conduct in raising the proceedings in Kenya was unconscionable, vexatious or oppressive. The court found that, if proved, the averments made in respect of alleged intimidation and harassment of the group members by JKFL, together with other conduct, were “easily capable” of founding a case. The balance of convenience also favoured the grant of the interdict. Whilst the Kenyan anti-suit injunction remained in the place, the group members were unable to continue to pursue their claim in Scotland, and there was serious doubt as to whether they would be able to bring claims for substantive damages in Kenya. JFKL, on the other hand, would not be prejudiced to the same extent if the interdict 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 in the same way as any other type of claim. The court noted that “it is for the courts of the place where an action has been brought, in this case the Court of Session, to decide whether it has jurisdiction (in this case, over a company, be it remembered, which is domiciled in Scotland), not for a foreign court to determine that issue”.

Companies operating in a global marketplace need to be aware that multiple class actions could be launched in multiple jurisdictions, and that as of 2020, that includes Scotland. A clear strategy to manage and mitigate the risks is required in this new litigation landscape.

Fiona Chute is an associate at Brodies LLP

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