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HUGH HALL CAMPBELL KC AGAINST JAMES FINLAY (KENYA) LTD [2022] ScotCS CSOH_94 (20 December 2022)
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[2022] CSOH 94,
[2022] ScotCS CSOH_94
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OUTER HOUSE, COURT OF SESSION
[2022] CSOH 94
P657/22
OPINION OF LORD WEIR
In the petition
HUGH HALL CAMPBELL KC
Petitioner
against
JAMES FINLAY (KENYA) LIMITED
Respondents
Petitioner: Smith KC, C Smith; Thompsons
Respondents: Lord Davidson of Glen Clova KC, A McKenzie KC, Boffey; CMS Cameron
McKenna Nabarro Olswang LLP
20 December 2022
Introduction
[1]
On 24 August 2022 Lord Braid granted interim interdict and an interim order under
section 46 of the Court of Session Act 1988. He issued both an opinion ( [2022] CSOH 57 ) and
a note of reasons subsequent to a discussion on the precise terms of the orders to be
pronounced. The circumstances giving rise to the orders are fully set out in those
documents. The respondents have now applied for recall, or more properly a variation, of
parts 3(a) and 3(c) of Lord Braid's order to enable them to file written submissions in the
2
Kenyan anti-suit petition currently before the Employment and Labour Relations Court in
Nairobi. I heard submissions on the respondents' motion on 14 December 2022.
Background to the motion
[2]
The petition, and associated group proceedings have a protracted procedural history.
I have already set out the background to the granting of the interim interdict of 24 August
2022, and other procedural developments in the group proceedings, this petition process,
and the petition P305/22 (in which the petitioner seeks interdict of certain alleged conduct on
the part of the respondents), in the note which I prepared and issued with the interlocutors
following the preliminary hearing in the group proceedings, and the calling of the petition
processes, on 30 September 2022. In dealing with the submissions advanced in support of
the application for recall it is assumed that those considering this decision will be familiar
with the contents of that note. It is sufficient to notice that, on 30 September, in both petition
processes, I fixed an evidential hearing on the petition and answers, with a diet due to
proceed at the end of February 2023. Both petitions were appointed to call for a case
management hearing on 25 November 2022. Meantime, I allowed minutes for breach in
both petitions to be received and answered, with a procedural hearing fixed in the first
instance for 11 November 2022. I sisted the group proceedings meantime for a period of six
weeks, for the reasons set out in paragraph [39] of my note of 30 September 2022, and
appointed them to call by order (alongside the minutes for breach) on 11 November 2022.
[3]
The petitioner then raised a third petition for interdict against the respondents
(P866/22). Against a background in which new claimants wished to opt into the group
proceedings, the purpose of the petitioner's application was to protect the identities of such
new claimants from disclosure to third parties all for the reasons narrated in the petition.
3
On 1 November 2022, having heard parties on the petitioner's opposed motion, I granted
interim interdict in the following terms:
"interdicts ad interim [the respondents] from providing any information to any third
party (viz a party not employed by the respondents) which identifies or is capable of
identifying any person added after 30th September 2022 to the list of Group Members
in the Group Proceedings with Court of Session reference number GP1/22, with the
intention on the part of the respondents that that information be utilised by any such
third party for the purpose of raising anti-suit proceedings in Kenya ..."
Lest it be of any interest, my reasons for pronouncing that order are explained in the note of
reasons attached to the interlocutor of 1 November 2022. The petition is currently sisted.
[4]
At the hearing on 11 November 2022 I was addressed by parties on further
procedure in both the group proceedings and the minutes for breach. It being accepted for
the time being by the present petitioner that the anti-suit injunction in Kenya precluded any
further progress being made in respect of claimants who were respondents to the Kenyan
petition, but there now being no objection to this course of action by present respondents, I
ordered that the group proceedings progress in respect of group members who joined those
proceedings after 30 September 2022 (ie those unaffected by the Kenyan anti-suit injunction).
I also made ancillary procedural orders on the matter of adjustment in both the group
proceedings and minutes for breach, and management of the group register.
[5]
At the hearing on 11 November I was also advised that the Kenyan court had
disposed of, and repelled, the preliminary objection to the Kenyan anti-suit petition. The
petition was to proceed by way of written submissions with the current respondents
ordered to file and serve submissions within 14 days of 28 October. Such were the
circumstances in which senior counsel sought permission from this court for the
respondents to do so notwithstanding the terms of Lord Braid's order of 24 August 2022. I
declined to do so. It seemed to me that, given the Kenyan court's decision to deal with the
4
Kenyan petition by way of written submissions, I was in effect being invited to recall
Lord Braid's interlocutor without a motion having been enrolled and without being
properly and fully addressed on whether the developments in Kenya amounted to a
material change of circumstances.
[6]
On 25 November 2022 this petition and petition P305/22 called for a case
management hearing. The group proceedings called by order on the same date and I made
various orders concerning adjustment and the exchange of lists of witnesses etc. in each
process. I also directed that the pleadings in the group proceedings focus on the issues of
jurisdiction and forum non conveniens, it being anticipated that those issues would require to
be disposed of ab ante. Senior counsel for the respondents also moved for leave to reclaim
my refusal to grant permission for submissions to be lodged in the Kenyan petition. I
observe, in passing, that it did not appear that the respondents had been penalised for not
lodging submissions timeously. I refused leave for substantially the same reasons as I
refused permission in the first place. It was still open to the respondents to lodge a motion
for recall of Lord Braid's order but they had elected not to do so in the intervening period.
That position has been altered by the lodging of the present motion.
Submissions for the respondents
[7]
The respondents sought in effect a modification of paragraphs 3(a) and 3(c) of the
order of 24 August 2022 to the extent of enabling the respondents to comply with extant
orders of the Kenyan court and such orders as the Kenyan court may make from time to
time. The immediate purpose of the proposed modification was to enable the respondents
to comply with the order to lodge written submissions in the petition process.
5
[8]
Senior counsel submitted that the position had materially altered since Lord Braid
pronounced his interim orders on 24 August 2022 and Lord Ericht's refusal to recall them.
He relied, in particular, on (i) the appearance of the petitioner in the Kenyan proceedings to
challenge the competency of the petition; (ii) the now acceptance by the petitioner that the
claims of the initial 1044 group members required to be sisted in recognition of the anti-suit
injunction; (iii) the absence of any resolution to the question whether the respondents had
sought a stay in the Kenyan proceedings wrought by the lodging by the petitioner of the
preliminary objection; (iv) the fixing by the Kenyan court of "a full hearing of the range of
issues raised in the Kenyan petition" for 2 December 2022; (v) the willingness of the Kenyan
court to hold a full hearing notwithstanding the passing of the 2 December date; (vi) the
unsoundness of the petitioner's contention that the respondents' petition would be
discharged by the Kenyan court on being seised of the terms of the interim interdict; and
(vii) the starkness of the conflict in jurisdictions given the Kenyan court's rejection of the
preliminary objection and the ordering of a full hearing on the petition.
[9]
On the last of the enumerated points senior counsel observed that, notwithstanding
the respondents' appearance before it, the Kenyan court had declined to recall its interim
order or stay the Kenyan proceedings. That much was clear from the terms of its order of
25 August 2022 (to which, I observe, Lord Ericht was referred in the motion for recall before
him). There remained a dispute as to whether the respondents' counsel had actually applied
for a stay of the Kenyan petition. The respondents had sought to return to the Kenyan court
for clarification on that matter but that was overtaken by the lodging of the preliminary
objection. Following the Kenyan court's refusal of that objection and holding that the
respondents' "clarificatory application" was spent, the Kenyan Court had fixed ex proprio
motu a full hearing and ordered the filing in advance of written submissions.
6
[10]
These changed circumstances justified recall to the extent sought by the respondents.
Such recall was, in any event, justified by reference to the principle of comity and as a matter
of utility. It was plain that the Kenyan court perceived Lord Braid's order to have extra-
territorial effect (cf Turner v Grovit [2002] 1 WLR 107, paragraphs 23; 28-29). Comity was a
term of elastic content but its requirements entailed respect for the dignity and
independence of sovereign states. It was characterised by deference, sensitivity and respect
where there was a risk of intrusion beyond the limits of Scottish territory (Dicey, Morris and
Collins on Conflict of Laws, 16th Edition, paragraphs 7-002-7-019; 12-126-12-127). Preservation
of comity between foreign sovereign nations required caution and sensitivity. Reference
was made to Masri v Consolidated Contractors International (UK) Ltd (No 3) [2009] QB 503;
Stichting Shell Pensioenfonds v Krys and another [2015] AC 616, and Star Reefers Pool Inc v JFC
overwhelming, connection with Kenya. The strength of that connection justified greater
caution on the part of this court and a greater need to temper its intervention. Comity
would be negatively affected if the respondents were prevented from complying with orders
of the Kenyan court.
[11]
Finally, it was submitted that there was considerable utility in the Kenyan court
making a decision on a matter of Kenyan law (Dana Gas PJSC v Dana Gas Sukuk Ltd
natural connection was with Kenya. In both the group proceedings and the petition
processes the court would have to decide on questions of Kenyan law. The Kenyan court
was better placed to issue a judgment on what Kenyan law was on these matters. A decision
from the Kenyan court was likely to be available in advance of the evidential hearing which
7
was fixed for late February/early March 2023. The petitioner was now a party to the Kenyan
proceedings and could make submissions in them.
Submissions for the petitioner
[12]
The petitioner moved in the first instance that the motion be continued to enable him
to make further adjustments on matters bearing upon access to justice in Kenya (including
lack of legal aid, QOCS orders, funding, resources for mass party litigation, delay and
confidence in the Kenyan legal system). These issues were relevant to the balance of
convenience but had not been fully pled given the order in which parties were currently
adjusting in the group proceedings. Ultimately, the petitioner sought a postponement of the
hearing of the motion until after the evidential hearing in February/March 2023.
[13]
Esto the motion was not continued, it should be refused. The principle underlying
contentions of the petitioner in seeking interim interdict were (i) the respondents were
domiciled in Scotland; (ii) they had already submitted to the jurisdiction of the Scottish
courts by making substantial and substantive arguments in the group proceedings (and
reclaimed against permission having been granted); (iii) the orders sought were in personam
and not directed against the Kenyan court; (iv) Lord Braid's order did not offend against the
principles of comity; (v) there was no overriding utility in the Kenyan court determining
issues of Kenyan law; and (vi) there remained doubts about the ability of the group
members to obtain access to the Kenyan courts due to lack of funding, experienced
representation and delay in the Kenyan court's handling of the matter. Those contentions
were as live now as they were when Lord Braid granted interim interdict, and there had
been no material change of circumstances such as would justify any interference with that
order.
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[14]
In particular, the fact that further orders might be made in Kenya did not detract
from the point that Lord Braid had ordered the respondents to desist from prosecuting its
petition in Kenya, not the Kenyan court from hearing it. Lord Braid was aware that further
orders might be made in Kenya. When he heard a motion for recall of the interim orders
shortly after they were granted, Lord Ericht determined that they were in personam and were
not intended to be an interference with the jurisdiction of the courts of Kenya or the
sovereignty of Kenya ([2022] CSOH 61, paragraph [21]). The issue of comity had previously
been argued in support of the motion for recall before, and considered by, Lord Ericht who
had nonetheless refused that motion. The decisions of Lord Braid and Lord Ericht had not
been reclaimed. In any event, principles of comity could not require this court to permit ex
hypothesi vexatious proceedings to continue in the circumstances of this case.
[15]
The argument about utility had already been advanced before Lord Braid and
rejected by him ([2022] CSOH 57, paragraph [38]). In any event, the orders sought in the
Kenyan petition were not just declaratory. The ultimate purpose of the Kenyan proceedings
was to obtain a permanent injunction against all and any group members from continuing
with proceedings in Scotland. If they succeeded in respect of the original 1044 group
members there was every reason to think that the respondents would seek to prevent the
group proceedings from progressing in respect of any other group members. "Utility" had
to be seen in that context.
[16]
In short, there had been no material change of circumstances such as would justify
departure from terms of the interim interdict granted by Lord Braid and the motion should
be refused.
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Analysis and decision
[17]
I begin with the petitioner's submission that the hearing of the motion should be
postponed until some later date, preferably after the evidential hearing in late
February/early March 2023. It is sufficient for me to record that I did not consider it
appropriate to defer consideration of the motion until a later date. The matters to which
senior counsel pointed as not yet being the subject of averment did not seem to me to impact
significantly on the likely arguments of parties, which had been foreshadowed in notes of
argument tendered in advance of the hearing of the motion. Nor did I consider that there
was any justification for postponing the hearing until after the evidential hearing previously
referred to. The scope of that hearing is currently limited to the petition processes and
relative minutes for breach. A continuation to a point where the court would be considering
whether to make final orders in this petition would be tantamount to taking away the
respondents' right to move for a recall meantime in appropriate circumstances. Besides, the
court had, at parties' invitation, set aside a half day for consideration of the motion and
parties appeared ready to proceed. Accordingly, I decided to hear the motion on its merits.
[18]
In addressing the competing arguments the sole and limited question before this
court, as it was before Lord Ericht back in August, remains whether the court should alter
the orders of Lord Braid because of a material change of circumstances between the granting
of the orders on 24 August and the hearing before me. In addressing that issue it is also
important to remember that the petitioner accepts that the respondents have the right to
argue that the claims of group members should be litigated in Kenya. But, as Lord Braid
recorded in his opinion (paragraph [41]) what the petitioner claims to be oppressive is the
respondents' conduct in raising (late) the jurisdictional issue and attempting to have it
10
decided in Kenya rather than in the Court of Session where permission to proceed has
already been granted and confirmed on appeal.
[19]
In addressing what he submitted were various changes in circumstances since
24 August 2022 senior counsel first of all raised the matter of the petitioner appearing in the
Kenyan proceedings with a preliminary objection, it having previously been contended that
appearance on behalf of group members was precluded by the expense and difficulty of
obtaining separate instructions. I am prepared to accept that this represents a change in the
position before Lord Braid, who appears to have accepted the petitioner's argument that, for
the Kenyan court to do justice to the arguments before it, the proceedings would need to be
opposed in a meaningful sense and that this was unlikely to be possible due to practical
difficulties in obtaining instructions and funding. I do not, however, consider that the issue
is one of any materiality. Lord Braid's conclusion that the petitioner had made out a strong
prima facie case does not appear to have been influenced to any extent by practical difficulties
associated with opposition to the Kenyan petition (paragraph [42]). Where they did feature
in Lord Braid's discussion of the balance of convenience (paragraph [43]) that was in the
context of a wider consideration of the ability of the group members to bring substantive
damages claims in Kenya. Although that aspect of matters gave rise to the concern
mentioned earlier (when senior counsel for the petitioner sought to have this motion
continued) the extent to which there were difficulties associated with access to justice in
Kenya did not feature to any significant degree in the respondents' submissions where the
balance of convenience was concerned. Moreover, it seems evident that Lord Braid's
decision on the balance of convenience was affected by what he conceived to be the strength
of the petitioner's prima facie case. Accordingly, for the purposes of this motion, I do not
11
consider that any significance should be attached to the fact that the petitioner has been able
to present a preliminary objection to the Kenyan court.
[20]
Nor do I consider that the taking of the objection by the petitioner itself amounts to a
material change of circumstances. I remain of the view, foreshadowed in my note of
30 September 2022, that the fact that the Kenyan court has expressed a view favourable to
the respondents on the competency of the anti-suit petition does not detract from the
fundamental contention of the petitioner that the raising of the petition was itself vexatious,
oppressive and unconscionable. The fact that, as it was represented to me, the petitioner
took the objection against the possibility of a default judgment does not, in my view, change
the landscape. It is the raising of the petition and the motivation for doing so that is at the
heart of the petitioner's complaint in the present petition.
[21]
Moving on, the acceptance by the petitioner that the claims of the initial 1044 group
members required to be sisted seems to me to reflect the practical reality that, as at
30 September 2022, there was no way in which the group proceedings could progress for the
benefit of existing and new claimants alike, without risk of existing claimants being in
contempt of the Kenyan court. In that respect it is relevant to recall that the parties remain
in dispute about whether a stay was ever applied for pursuant to Lord Braid's direction on
24 August 2022. That dispute is not currently capable of resolution. The information about
the matter is opaque, to say the least. All that can be said is that, standing the terms of the
decision of the Kenyan court on 28 October 2022, it is questionable whether that court
actually held that the respondents' "clarificatory application" was spent, as represented in
the respondents' note of arguments. The judgment is silent on that matter. In these
circumstances, I do not consider that the sisting of the claims of the initial group members is
material to the decision I have to reach.
12
[22]
I turn then to the decision of the Kenyan court on 28 October 2022 to reject the
petitioner's preliminary objection and make orders for further procedure. The respondents,
before Lord Ericht, previously relied on the occurrence of the Kenyan hearing on 25 August
2022 as constituting a material change of circumstances in respect of the reasoning set out in
Lord Braid's opinion. That was the hearing at which the Kenyan court pronounced an order
stating inter alia that the orders issued by Lord Braid "cannot be enforced in this court, as
they are in breach of our constitution, in particular with respect to our sovereignty". The
fact that the Kenyan court also made orders for further procedure on that date was not
sufficient to persuade Lord Ericht that a material change of circumstances had arisen. It is
useful to recall what Lord Ericht said in reaching that conclusion:
"[21] In my opinion the Kenyan hearing on 25 August is not a material change of
circumstances in respect of the reasoning set out in Lord Braid's opinion. Lord Braid
was made aware when granting the orders that the Kenyan hearing would take place
the next day. In his opinion he took the view that the orders were directed not at the
foreign court but at the wrongful conduct of the party to restrained (paragraph [17]).
The Kenyan court has decided that the orders were directed at the foreign court: it
states that Lord Braid's orders cannot be enforced in the Kenyan court as they are in
breach of the Kenyan constitution in particular with respect to sovereignty. That
decision makes no difference to the reasoning of Lord Braid as to prima facie case.
Lord Braid's reasoning was that he was merely exercising his jurisdiction over the
person of JFK which is a Scottish company. The orders are in personam against JFK
and are not intended to be an interference with the jurisdiction of the courts of Kenya
or the sovereignty of Kenya (Sabah Shipyard (Pakistan) Ltd v Republic of Pakistan
court which detracts from that conduct-based reasoning: the decision of the Kenyan
court is silent on the conduct of JFK. Nor does that decision make any difference to
the balance of convenience: all the matters on which Lord Braid relies in
paragraphs [41] and [42] are unaffected by the decision of the Kenyan court."
[23]
Lord Ericht's decision to refuse to recall Lord Braid's orders has not been reclaimed.
Yet, the same process of reasoning may equally be thought to apply to the issue of whether
the Kenyan court's order repelling the preliminary objection, and fixing further procedure in
the petition proceedings, itself constitutes a material change of circumstances. The
13
respondents themselves drew attention, in their note of arguments, to Rule 27.3 of what I
take to be the relevant rules of procedure in Kenya. That rule, which stipulates that the
court may proceed with a hearing of a case petition in spite of the wish of the petitioner to
withdraw or discontinue proceedings, might serve to indicate that maintenance of
Lord Braid's orders does not necessarily give rise to the stark conflict of jurisdictions
contended for by the respondents. But what has not changed is the legal basis upon which
the petitioner asserts that the raising of the Kenyan proceedings by the respondents was
"vexatious, oppressive and unconscionable". The decision of the Kenyan court appointing
further procedure, detailed in the judgment of 28 October 2022, is again silent on the
conduct of the respondents. It again makes no difference to the reasoning of Lord Braid on
the matter of the petitioner's prima facie case.
[24]
The respondents submitted that there was nevertheless utility to this court in having
a decision from the Kenyan court on the matter of jurisdiction. Given that the Kenyan
petition is not confined to the obtaining of declarations about the legal position in Kenya it is
not immediately obvious why that should be so. Moreover, it was not entirely clear (to me
at least) whether the utility of having a decision from the Kenyan court was a factor bearing
upon the balance of convenience, the strength of the petitioner's prima facie case, or whether
it lurked somewhere in between. Either way, there does not seem to me to be anything new
about the utility argument which was previously addressed at the hearing before
Lord Braid. At paragraph [45] his Lordship expressed himself in the following terms:
"The argument for JFKL that the Kenyan courts are best placed to decide whether
Kenya has exclusive jurisdiction is superficially seductive. However, I consider it to
be undermined by what I take to be a general acceptance 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: cf
Turner v Grovit, paragraph [26]. The point being made there of course was that it
14
was not for an English court to determine the jurisdiction of a Madrid court but the
observation of Lord Hobhouse is of general application: `For the foreign court, its
jurisdiction and whether to exercise that jurisdiction falls to be decided by the
foreign court itself in accordance with its own laws ... Restraining orders come into
the picture at an earlier stage and involve not a decision upon the jurisdiction of the
foreign court but an assessment of the conduct of the relevant party in invoking that
jurisdiction.' It seems to me that the obverse applies, namely, that this court has an
interest in protecting its own jurisdiction (a theme which emerges from the case law)
..."
[25]
To the extent that the respondents, under reference to Dana Gas PJSC v Dana Gas
Sukuk, above, sought to invite on the court a different approach to that taken by Lord Braid I
do not consider that it is open to me to do so. As previously observed, Lord Braid's decision
was not reclaimed. The fact that the Kenyan court may be willing to give a decision on
matters of Kenyan law does not innovate on the position as it was when the interim orders
were originally granted. Accordingly, I do not consider that the arguments on utility assist
the respondents' position.
[26]
That leaves for consideration the principle of comity raised by the respondents. I
confess to having had some difficulty identifying, from his opinion, the extent to which
comity was discussed before Lord Braid. If the decision of Masri was discussed before him,
as suggested by senior counsel for the petitioner, I can see no reference to it. Comity does
appear to have been raised by the respondents in the recall motion before Lord Erich
( [2022] CSOH 61, paragraph [11]), but only in the context of the petitioner's then application for an
order that the respondents abandon the proceedings in Kenya. Whatever may have been the
position before, however, I have no difficulty with the proposition, derived by the
respondents from the authorities to which reference was made, that comity is characterised
by deference, sensitivity and circumspection and that the preservation of comity between
sovereign nations requires the utmost caution and sensitivity. The question is whether the
15
principle of comity compels me to the view that the variations to Lord Braid's orders should
be granted.
[27]
In answering that question it would, in my view, be wrong to see the issue purely
through the lens of a Kenyan court. The group proceedings were raised, by virtue of the
respondents' domicile in Scotland, and also defended, months before the respondents
sought to involve the Kenyan court. No issue of comity would even have arisen had they
not done so. The petitioner satisfied Lord Braid that he had pled a strong prima facie case for
an anti-anti suit injunction which the balance of convenience favoured. The Kenyan court
order of 25 August 2022, as previously noticed, is silent on the conduct of the respondents in
raising the Kenyan proceedings, as is the later order of 28 October 2022. On inquiry at the
hearing of this motion senior counsel was unable to elaborate on the extent to which the
Kenyan court had been made aware of the background circumstances in which the present
petition was raised. That matter remains entirely unclear, and I am not prepared to assume
that the Kenyan court has been fully appraised of those circumstances any more than it has
been appraised of the fact that jurisdiction is an issue in the group proceedings which has
still to be determined and may yet be resolved against the petitioner. I was, however,
informed during the hearing of the motion that the Kenyan proceedings are currently "stood
over generally". I was given to understand that that meant they would not progress unless
active steps were taken by a party to advance those proceedings. Accordingly, it appears
that there are currently no imminent dates timetabled in the Kenyan proceedings. There is,
however, an evidential hearing fixed on the petition and answers in this case which, at least,
is intended to resolve the factual issues which, on a prima facie basis, satisfied the test for
interim interdict.
16
[28]
Against that whole background, it does not seem to me that maintenance of the
existing interim orders, founded on the conduct-based reasoning which gave rise to them,
would offend against the principle of comity and I am not prepared to vary or recall them
on that basis.
Conclusion
[29]
It follows that I am not persuaded that, individually or cumulatively, the factors
relied on in support of the motion amount to a material change of circumstances such as
would justify the variations sought. The motion is accordingly refused.
