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Cite as: [2022] CSOH 95, [2022] ScotCS CSOH_95

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OUTER HOUSE, COURT OF SESSION

[2022] CSOH 95

GP1/22, P305/22, P657/22

NOTE BY LORD WEIR

In the cause

HUGH HALL CAMPBELL KC

Pursuer

against

JAMES FINLAY (KENYA) LIMITED

Defenders

Pursuer: Smith KC, C Smith; Thompsons

Defenders: Lord Davidson of Glen Clova KC, A McKenzie KC; CMS Cameron McKenna Nabarro

Olswang LLP

30 September 2022

Introduction

[1]

This note concerns three related cases which all called before me initially on

16 September and subsequently on 22 September 2022. In the first matter the pursuer is the

representative party for in excess of 1000 Kenyan nationals who are group members of

group proceedings previously authorised by the court in which it is claimed that they have

suffered loss, injury and damage through the fault and negligence and breach of contract of

the defenders. The two other matters concern petition proceedings in which the pursuer has

sought interim relief from certain conduct alleged by the pursuer on the part of the

defenders in connection with those group proceedings. Both petitions called before me by

order at the same time as I heard the preliminary hearing in the group proceedings.

[2]

The pursuer has, separately, invited the court to have received minutes for breach of

undertakings given, and interim interdicts pronounced, in connection with both petition

processes. In view of the number of processes to which the group proceedings have now

given rise, and to avoid any consequent confusion, I simply refer to the parties throughout

this note as "the pursuer" and "the defenders".

Background

[3]

On 16 February 2022 I granted permission for the bringing of the "James Finlay

(Kenya) Limited Tea Estate Workers Group Proceedings" ("the group proceedings"). The

pursuer is the representative party in those proceedings. I determined the issue as being

claims in respect of musculoskeletal injury arising from common conditions of employment

of employees engaged in harvesting tea on estates owned and/or operated by the defenders

in Kenya. A timetable was fixed for the progress of the action.

[4]

The interlocutor granting of permission was the subject of a reclaiming motion at the

instance of the defenders. On 27 May 2022 the court refused the reclaiming motion. It made

an order for defences to be lodged no later than 24 June 2022. On 17 June 2022 the group

proceedings called before me on a motion by the pursuer for approval of the terms of a

notice for their advertisement in Kenya. On the same date I extended the period within

which claims may be brought in the group proceedings by a period of six months. Defences

were thereafter lodged timeously. In the defences (and, therefore, subsequent to the

disposal of the reclaiming motion) the defenders introduced a plea that the court had no

jurisdiction to hear the group proceedings. The defenders also maintain a plea of forum non

conveniens a plea which had previously been foreshadowed in argument at the permission

stage.

[5]

Two other developments require to be noticed. In the first place, prior to the hearing

of the reclaiming motion, the representative party lodged a petition (P305/22) seeking

interim interdict against the defenders from (broadly) engaging in behaviour calculated to

intimidate and threaten group members or dissuade them from continuing with litigation

against the defenders. Interim interdict in the terms sought was granted ex parte by

Lord Doherty on 8 April 2022. After sundry procedure (and following the allowance of an

evidential hearing) the petition proceedings were sisted on an undertaking granted by the

defenders in terms closely similar, but not identical, to the interim interdict. The defenders

conceded the expenses of the petition to date.

[6]

In the second place, on 28 July 2022, the defenders applied for and were granted an

interim injunction in the Employment and Labour Relations Court of Kenya. Interim orders

were granted ex parte prohibiting the group members (although not the representative party

himself) from (a) prosecuting or proceeding in any manner with the group proceedings and

(b) initiating any further actions with regard to any work related injury claims arising in

Kenya, pending the hearing of the Kenyan application. Certain consequential orders were

made in relation to service and advertisement of the interim injunction. The practical effect

of the order of the Kenyan court was that the group proceedings could not be progressed for

as long as the orders remained in force. Such was the background in which the pursuer

lodged a further petition (P567/22) along with a motion for interim interdict prohibiting the

defenders (a) from continuing to prosecute ongoing proceedings which it had raised in the

Kenyan court and (b) from raising any new proceedings which had the effect, or intended

effect, of interfering in any way with conduct of the group proceedings.

[7]

That petition initially called on 15 August 2022. It was continued until 19 August to

enable senior counsel for the defenders to obtain instructions. Meantime the defenders gave

an undertaking in the following terms:

"i.

That the hearing scheduled to take place in the Kenyan courts on 25 August

2022 will be delayed for a period of two weeks; and the respondents will make the

necessary representation to the Kenyan court at the own expense for that to be

effected.

ii.

No further or other applications will be made to any Court whether in Kenya

or otherwise relating to the Scottish Group Proceedings between the parties pending

the hearing of the interim interdict in this process.

iii.

That all and any lists of Group Proceedings members will be removed

forthwith by the respondents if placed on notice boards by them in furtherance of the

Kenyan court order referred to in the petition; and shall not be replaced; and no

further lists will be posted by them until the hearing of the interim interdict.

iv.

There will be no public statement by the respondents regarding this

agreement other than to confirm its existence and content prior to the hearing on the

interim interdict."

Lord Braid's order

[8]

On 19 August 2022, in the petition process P657/22, the pursuer moved Lord Braid to

grant interim interdict and interim performance. He issued an opinion on 22 August

( [2022] CSOH 57) to the effect that the petitioner had presented a strong prima facie case, that the

balance of convenience was in his favour and that interim orders and an order under

section 46 of the Court of Session Act 1988 were appropriate. Lord Braid put the case out for

a further hearing on 24 August 2022 for discussion of the precise terms of the interlocutor to

be pronounced. On that date he granted the interim orders and issued a note setting out the

reasons for why he made the orders which he did. The full background to the making of the

orders is set out in Lord Braid's opinion.

[9]

The orders pronounced by Lord Braid, which have not been the subject of any

reclaiming motion, were in inter alia the following terms:

"...

Interdicts ad interim the respondent or anyone acting on its behalf:

(a)

from continuing to prosecute the proceedings at its instance in the

Employment and Labour Relations Court of Kenya at Nairobi City

under case number ELRCPET/E133/2022;

(b)

from seeking to raise any further proceedings other than those

referred to in (a) above, in Kenya or elsewhere out-with the

jurisdiction of this Court, which have the effect or intended effect of

interfering in any way with the conduct of the Group Proceedings in

Scotland, in which the respondent is the defender, with reference

number GP1/22;

(c)

from seeking to implement the orders of the Court in Kenya

pronounced on 28 July 2022 in any way, and in particular by posting

copies of the list of Respondents to the Kenyan proceedings on notice

boards or, if effected, by continuing to permit them to be posted;

Grants orders ad interim in terms of section 46 of the Court of Session

Act 1988:

(a)

ordaining the respondent to apply to the Court in Kenya as soon as

practicably possible in the proceedings referred to in paragraph 3(a)

above (i) to recall or otherwise negate the effect of all orders which

were granted on 28 July 2022, such as to permit the continuation of the

Scottish Group Proceedings referred to in 3(b) above and (ii) to have

the proceedings stayed; those applications to be at their sole expense;

and

(b)

ordaining the respondent as soon as practicably possible to publish a

notice in English together with a translation in Swahili and published

on its notice boards at all locations where it had previously been

displayed the names of employees who were engaged in the group

proceedings in purported implement of the court orders in the

Kenyan proceedings; orders that the notice should inform group

members of the terms of orders granted in 3(a) and 3(b) of this

interlocutor and that it should include the following: `Contrary to

previous notices placed on this notice board, no person is required to

provide their email address to JFK's Advocates;

...' ".

Kenyan hearing on 25 August 2022

[10]

On 25 August 2022 the Kenyan proceedings called for a hearing. The pursuer was

not represented at that hearing. The defenders were represented by an advocate of the High

Court of Kenya, Geoffrey Obura. Precisely what transpired at the hearing (and, in

particular, whether the defenders' advocate moved for a stay of the Kenyan proceedings) is

a matter of dispute. It appears, however, that Mr Obura advised the Kenyan court of the

terms of Lord Braid's order. At the hearing on 25 August the Kenyan court pronounced the

following order:

"1.

The Respondents have not entered appearance, attended Court, or responded

to the Application filed by the Petitioner, within 14 days, as directed by the Court on

28 July 2022.

The Orders issued by the Scotland Court cannot be enforced in this Court, as

they are in breach of our Constitution, in particular with respect to our sovereignty.

The interim Orders issued on 28 July 2022 are confirmed.

The Respondents are granted another 14 days to respond to the main Petition.

Directions on hearing of the Petition to issue on 12 September 2022 before the

Duty Judge.

The Respondents to be notified through the press media."

The hearing on 30 August 2022

[11]

Following the Kenyan hearing on 25 August both parties sought variation of

Lord Braid's orders. The petition called before Lord Ericht on 30 August 2022. At that

hearing the defenders sought recall of the interim interdicts set out in paragraphs 3(a)

and (c) of Lord Braid's order and the order for interim performance set out in

paragraph 4(b). The pursuer sought variation of Lord Braid's order to the effect that the

defenders should be ordained to abandon the Kenyan proceedings.

[12]

The circumstances giving rise to the applications for variation of Lord Braid's orders,

and the competing submissions of parties, are set out in the opinion issued by Lord Ericht

on 30 August 2022 ([2022] CSOH 61). I do not propose to repeat them here. Having heard

argument Lord Ericht refused to vary Lord Braid's orders. He observed that the sole and

limited question before the court was whether it should alter those orders because of a

material change of circumstances between the granting of the orders on 24 August and the

hearing before him on 30 August. He noted that both parties relied on the Kenyan court

hearing on 25 August as representing such a material change.

[13]

Lord Ericht was not, however, satisfied that the Kenyan hearing comprised a

material change in circumstances where the reasoning of Lord Braid was concerned.

Dealing with the defenders' application for recall, Lord Ericht said this:

"... 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 be

restrained. 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 material 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 [2002] EWCA Civ 1643, paragraph [45]). There is

nothing in the decision of the Kenyan 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 on 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".

[14]

Dealing with the pursuer's motion to order the defenders to abandon the Kenyan

proceedings, Lord Ericht noted that the pursuer's position that no application to stay the

Kenyan proceedings had been made on 25 August was disputed (although, on the

information available to him, Lord Ericht thought that there was considerable force to the

pursuer's position that it had not been). He observed that, even on the petitioner's own

account of what had happened at the hearing on 25 August, the Kenyan court had not

refused an application to stay and that, accordingly, there was no material change in

circumstances such as would warrant the making of any different order where interim

performance was concerned.

[15]

In order to regulate further procedure, the court directed that the two petition

processes, P305/22 and P657/22, should call before me at the same time as the preliminary

hearing in the group proceedings scheduled for 16 September 2022. It was a matter of

agreement between them that parties should not be prevented from attending either the

hearing due to take place before the Kenyan court on 12 September or the hearings on

16 September in this court. To that end the court varied the interim interdict granted on

24 August so as to exclude the 12 September hearing from paragraph 3(a) of the interim

interdict, while senior counsel for the defenders gave an undertaking that no steps would be

taken to prevent the preliminary hearing taking place on behalf of the defenders or any

other interested party.

Preliminary hearing and by order hearings (16 and 22 September 2022)

[16]

Parties lodged notes of proposals for further procedure in advance of the hearing

initially fixed for 16 September 2022. The pursuer's note disclosed that the hearing in the

Kenyan court, originally fixed for 12 September for case management orders to be made,

had been continued in order that it could be dealt with by the judge who made the interim

orders. A hearing date had been fixed for 19 September. The note also revealed that an

application had been made meantime on behalf of the group members to dismiss the

Kenyan petition on the ground that it bore to determine a Kenyan constitutional issue which

was not competent in the Employment Court. I was told that this application had to be

determined but that a determination was not anticipated in the near future.

[17]

That being the position senior counsel for the defenders invited the court to continue

all matters into the following week to enable the hearing before the Kenyan court on

19 September to take place. Parties accepted that it was in contemplation that when all

matters called before me the hearing originally appointed to take place in the Kenyan court

on 12 September would have taken place. Lord Ericht had enabled the defenders to be

represented at that hearing by relaxing the effect of the interim interdict of 24 August 2022.

Parties were agreed that the relaxation should continue to apply in respect of what was

simply a continuation of the Kenyan court hearing. I therefore continued all matters until

22 September 2022. On that date I heard further submissions for the defenders.

Pursuer's submissions

[18]

Senior counsel for the pursuer acknowledged that as long as the Kenyan court orders

were extant there was a material risk that the current group members (who were subject to

the jurisdiction of the Kenyan court) would be in breach of the existing orders. That was the

case notwithstanding that Lord Braid had ordered that the defenders apply for a stay in the

Kenyan proceedings, the pursuer's position being that no such stay had been sought before

the Kenyan court on 12 September. Senior counsel stated that the conduct of the defenders

in publishing the names of all of the group members in the Kenyan national press and on the

defenders' notice boards had been calculated (successfully) to cause fear and alarm amongst

the group members and those contemplating joining the group proceedings. Senior counsel

also adverted to concerns that the defenders were seeking to avoid the effect of the interim

orders and undertakings to which they were subject by deploying as a proxy in the Kenyan

proceedings the Kenyan Tea Growers Association ("KGTA"), with whom the defenders had

ties. I was told that an application had been lodged for the KGTA to join the Kenyan

proceedings on the basis that it had a separate interest in those proceedings going ahead.

(The application was not intimated to those representing the group members and was

withdrawn, apparently without difficulty, a day later).

[19]

The pursuer maintained that the defenders, on various grounds, were in breach of

both the interim interdict granted by Lord Doherty, and the undertaking subsequently

given, in the petition process P305/22 and also the undertaking given, and interim interdict

and order under section 46 of the Court of Session Act 1988 subsequently granted by

Lord Braid, in the petition process P657/22. The Lord Advocate having intimated that she

did not intend to participate in either process the pursuer moved the court to allow minutes

for breach in respect of each process to be received. Senior counsel for the defenders

intimated that there would be no opposition to their receipt on being allowed 28 days for

answers.

[20]

Senior counsel for the pursuer recognised that there was doubt over whether the

Kenyan court would negate the orders it had made and, even if it did, within what timescale

that might be achieved. There were now significant numbers of individuals who wished to

be added to the group register and were not currently subject to the Kenyan court orders.

There was a legitimate concern that further delay would have time bar implications for those

not already on the group register. Moreover, the issues of jurisdiction and forum non

conveniens, raised in both the defences to the group proceedings and the defenders'

statement of issues, were not claimant specific. Accordingly, senior counsel proposed the

following by way of further procedure:

(i)

The claims of the existing group members should be sisted;

(ii)

The group proceedings should be permitted to proceed with new claimants

who are added to the group register and who are not, therefore, respondents

to the Kenyan proceedings;

(iii)

In order to protect them from intimidation, the risk of their names being

published or becoming the subject to orders from the Kenyan courts, the new

group members should be anonymised;

(iv)

A revised group register tendered at the Bar and adding new, and

anonymised, group members should be received by the court, and

(v)

The interlocutor of 17 June 2022, pronounced by me in the group proceedings

should be varied such as to enable further claimants to join the group register

for a period of one year.

Senior counsel also invited the court to fix evidential hearings on the petition and answers in

both petition processes with orders for the lodging of witness statements and other

documents.

Defenders' submissions

[21]

In reply senior counsel for the defenders noted that the pursuer and group members

had now raised a preliminary objection to the competency of the Employment and Labour

Relations Court hearing constitutional or sovereignty arguments in the anti-suit proceedings

in Kenya. The hearing in those proceedings previously fixed for 19 September 2022 had

been continued until the following day. The court had then decided that the preliminary

objection required to be resolved anti omnia. A hearing had been scheduled to take place on

28 September 2022, and parties were agreed that the defenders should be permitted to

appear in answer to the preliminary objection which had now been raised.

[22]

On the matter of further procedure senior counsel clarified that the defenders did not

contend, in light of the raising of the anti-suit proceedings in Kenya, that it was for the

Kenyan court to resolve whether the Court of Session had jurisdiction to hear the group

proceedings. What was asserted was that the Kenyan courts had exclusive jurisdiction

arising from the contractual relationship between the group members and the defenders.

That was a complex matter of Kenyan law. A statement by the Kenyan court on Kenyan law

on that matter would be of substantial assistance to this court when it came to consider the

jurisdiction challenge in the defences, and preferable to a process by which a decision was

reached solely on competing expert evidence about the applicable law. In these

circumstances the "rational solution" to the conflict of jurisdictions would be for the Kenyan

court of hear parties on the anti-suit orders. If, in due course, they were recalled then the

conflict would be substantially resolved; if not, then the sensible course would be for the

interim orders pronounced by Lord Braid to be recalled. At this stage, however, no motion

for recall was being made. Both petition processes should be sisted meantime.

[23]

The pursuer having recognised that the group proceedings would have to be sisted

quoad those group members who were subject to the Kenyan anti-suit injunction, senior

counsel submitted that it would be inappropriate for those proceedings to continue by the

expedient of adding new claimants to the group register. Such would amount to a

transparent stratagem to circumvent the anti-suit injunction of the Kenyan court. In any

event, the pursuer could not properly make any submissions on behalf of prospective

claimants who had not formally been added to the group register.

[24]

To address what appeared to be a potential difficulty senior counsel for the pursuer

moved for a revised group register (containing new claimants but with their details

anonymised) to be received at the Bar. I did not understand senior counsel ultimately to

object to the motion for its receipt to be made. The motion was, however, opposed. The

addition of the new claimants would produce potential difficulties, and lead to unwieldy

and unpredictable results, if the existing group members remained subject to the Kenyan

anti-suit injunction. Further uncertainty arose from the terms of the existing interim orders,

or undertakings given, in the existing Scottish proceedings and, in particular, whether their

protection extended to new claimants.

[25]

On the matter of anonymity the defenders did not accept that the pursuer's

apprehension that new claimants would be subject to harm or intimidation, were they to

seek to join the group proceedings, was justified. There was already general discussion

regarding who were participants in those proceedings and no demonstrable evidence that

they had come to any harm. There was, in that state of affairs, a risk that anonymising

claimants would generate an unfair perception that the defenders were responsible for any

names entering the public domain. In any event, anonymising the identities of new

claimants offended against the principle of open justice without proper justification,

especially in circumstances where it was proposed that the defenders themselves were not

know of the identities of those were seeking to advance claims against them.

[26]

Finally, senior counsel opposed the pursuer's motion to extend by one year the time

within which claimants would be permitted to join the group register. While a balance had

to be struck between the competing objectives of certainty and access to justice no

justification had been advanced for why the existing deadline of 17 December 2022 did not

adequately strike that balance, at least pending further developments in the group and other

proceedings.

[27]

Accordingly, senior counsel submitted that the group proceedings, and both petition

processes, should be sisted at least until the outcome of the preliminary objection raised in

the Kenyan court was known.

Decision further procedure

[28]

While preparing this note I was advised that a brief hearing on submissions took

place before the Kenyan court on 28 September. The court had, however, taken time to

consider the submissions made and a further hearing had been appointed to take place in

that court on 28 October 2022.

Petitions P305/22; P657/22

[29]

In determining how the multiplicity proceedings can sensibly be progressed senior

counsel for the defenders, while not seeking recall of Lord Braid's interim orders, floated the

proposition that the landscape had changed upon the taking on behalf of the group

members of a preliminary objection to the Kenyan anti-suit proceedings. That is indeed a

new development. However, while not strictly a decision for today, it is not obvious that it

has altered the landscape in any material way. As I understand it, the objection taken is

confined to the power of the Employment and Labour Relations Court to make the anti-suit

orders at all, whatever the merits of doing so. But whether or not that is so, it is important

not to lose sight of the fact that the pursuer contends that the conduct of the defenders in

seeking and obtaining the anti-suit orders in Kenya was an abuse of the process of this court,

contemptuous of the Scottish proceedings, vexatious, and calculated to harass and oppress

the group members. The averments of oppressive conduct made in support of the

application for interim interdict rely on (i) delay in raising the Kenyan proceedings; (ii) an

alleged history of intimidation; (iii) repeated attempts to thwart orders of the Scottish

courts; (iv) revision of the undertaking in petition process P305/22, showing that the anti-

suit injunction was in contemplation at that point; (v) misuse of the group register, and

(vi) the selective and in some respects misleading information which was placed before the

Kenyan court. The fact that, as I understand it, the Kenyan court may give an opinion on

28 October 2022 on the matter of the competence of the granting of the anti-suit injunction

does not detract from the fundamental contention of the pursuer that the raising of the

Kenyan proceedings was itself "vexatious, oppressive and unconscionable".

[30]

Moreover, although apparently confining himself for the time being to the

submission that the group proceedings, and associated petitions, should simply be sisted

pending determination of the preliminary objection, it is apparent from the written notes of

argument, prepared on their behalf, that the defenders maintain the position that the

rational solution to the conflict of jurisdictions would be for the Kenyan court in due course

to hear parties on the anti-suit injunction. That, however, is no more than a rehearsal of the

"superficially attractive" argument advanced before, and rejected by, Lord Braid when he

granted interim interdict on 24 August 2022.

[31]

It is in these circumstances that I consider it to [be] both necessary and desirable for

the disputed facts, and legal contentions, in the two petition processes to be established. I

propose to allow an evidential hearing on the petitions and answers of five days' duration

on dates to be afterwards fixed. I accept senior counsel for the pursuer's contention that,

given the importance of a decision on these matters, dates should be fixed as a matter of

high priority. I will allow parties a case management hearing in each petition, to take place

on 25 November 2022, and appoint parties to exchange and lodge in process not later than

18 November 2022 full statements from all witnesses whose evidence is sought to be

adduced and all documents upon which they seek to rely. There would seem no reason

why the issues raised by both petitions could not be disposed of at the same evidential

hearing. Whether it is necessary for the processes to be formally conjoined can no doubt be

considered at the case management hearings.

[32]

I will also vary the interim interdict granted on 24 August 2022 so as to exclude the

hearing on 28 October 2022 in Kenya. If parties consider that that variation should have

wider effect then I will hear parties further on the matter.

Minutes for breach

[33]

In the absence of opposition I will allow the minutes for breach in the interdict

petitions P305/22 and P657/22 to be received. I will appoint answers to be lodged within

28 days and fix a procedural hearing in each process for the same date. There is no

particular reason why the minutes should follow the timetable for the interdict petitions

themselves (although that can be kept under review) and I will therefore appoint the

procedural hearing to take place on 11 November 2022.

[34]

The dates I have stipulated in relation to the interdict petitions and the minutes for

breach, and the duration of the evidential hearing, will be included in the interlocutors in the

interdict petitions issued with this note. I am, however, conscious that they were not

specifically canvassed with counsel during the course of submissions. If they give rise to

any particular practical difficulty then parties should make contact with the clerk of court

and I will be content, within reason, to vary the dates if they do not suit.

Group proceedings GP1/22

[35]

I address now the matter of the group proceedings. Senior counsel for the pursuer

recognised that unless and until the Kenyan orders are recalled or negated the group

proceedings could not continue without there being a risk of those group members who

were respondents to the Kenyan proceedings being found in contempt of the Kenyan court.

The solution he proposed was that the group proceedings could proceed to a consideration

of the issues of jurisdiction and forum non conveniens on behalf of group members who were

added to the group register subsequent to the making of the Kenyan orders, and who were

not subject to them. The pursuer did not consider himself inhibited by the existing Kenyan

court orders from doing so. Senior counsel moved that a revised group register be received

at the Bar. In order to prevent such new group members from being subject to further

orders from the Kenyan courts he moved that they should be afforded the protection of

anonymity, and that that protection should extend to withholding the identity of individual

claimants from the defenders themselves.

[36]

There are well recognised circumstances in which claimants will be afforded the

benefit of anonymity such that their names or other personal details are not placed in the

public domain. The proposal that the identities of new group members be withheld from

the defenders was acknowledged by senior counsel to be "highly unusual". For my part, I

have never encountered a situation in which the identity of a party has been withheld from

the other party to proceedings altogether. If there is a precedent for such a proceeding then I

was not made aware of it. Senior counsel submitted that the high level issues of jurisdiction

and forum non conveniens were not case specific and could be addressed and determined

without the necessity of revealing the identity of claimants. That may technically be so. But

even where such high level issues are under consideration it seems to me that the defenders

would be entitled to know that the proceedings were being advanced on behalf of

individuals who were known to have been in their employment, with qualifying claims

which were not subject to any relevant time bar.

[37]

The motion made at the Bar for receipt of the revised group register depended on the

court being satisfied that the new group members be anonymised in the way proposed. I do

not consider that I can be so satisfied as long as the position is maintained that the identities

of the new group members must be withheld altogether from the defenders. It follows that I

must at this stage refuse the motion made at the Bar for receipt of the revised group register.

[38]

I understand that the existing group members are all respondents to the Kenyan

proceedings. I have not been invited to progress the group proceedings where those group

members are concerned. I do, however, recognise that the pursuer may wish to reconsider

the extent to which the existing interim orders afford the protection he considers necessary

for new claimants to join the group register. He may also wish to give further consideration

to the proposal to advance the group proceedings through new group members in

circumstances where I have now fixed evidential hearings in the interdict petitions. That

proposal must necessarily remain unresolved in light of my decision to refuse receipt of the

revised group register on the terms proposed. Finally, I am conscious that although, in his

most recent written submission, senior counsel for the defenders explored a number of

potential permutations arising from the disposal of the preliminary objection to the Kenyan

proceedings (not all of which recognised the continuing existence of the interim interdict

pronounced by Lord Braid), they must be to a degree speculative. The only apparent

certainty is that there will be a further hearing in Kenya on 28 October 2022 where a decision

of the first instance judge is anticipated.

[39]

What I propose to do, therefore, is to sist the group proceedings for a short period of

six weeks. The group proceedings will call by order on 11 November 2022 at the same time

as the procedural hearings in the minutes for breach. Amongst other things, that will enable

the court to receive an update on the position regarding the preliminary objection taken on

behalf of the group members. I proceed on the basis that calling the case by order will avoid

any embarrassment for the existing group members where the Kenyan orders are concerned.

[40]

I turn, finally, to the pursuer's motion to extend by one year the time limit for

claimants to join the group register. Strictly speaking, the motion has five separate parts,

four of which relate to the procedure associated with the updating of the group register, and

will logically require to be addressed before the group proceedings are formally sisted.

[41]

Dealing first of all with the extension of time, it is useful to recall that the interlocutor

of 16 February 2022, granting permission for the bringing of group proceedings stipulated

that the period of time within which claims may be brought by persons in the group

proceedings would end three months after the date of advertisement of the granting of

permission in the United Kingdom press. On 17 June 2022, following the defenders'

unsuccessful reclaiming motion, I extended the time limit by six months from that date. At

that point there was no suggestion that matters would develop in the way that they have

now done. On the contrary certain administrative orders were made (unopposed) in

connection with the mechanics of lodging a revised group register.

[42]

In opposing the pursuer's application for a further extension senior counsel for the

defenders recognised that a balance required to be struck between principles of certainty

(presumably about the number of claimants likely to participate in the group proceedings)

and access to justice. No doubt that is correct. However, it is difficult to avoid the

conclusion that the current lack of certainty stems largely from the decision taken by the

defenders whatever may have been the motivation behind it to raise anti-suit

proceedings in Kenya at the time in the life of the group proceedings that they did. The

progress of those proceedings has been rendered unpredictable by that decision alone.

[43]

Chapter 26A offers little guidance about the period within which claimants ought to

be added to a group register in group proceedings, beyond the provision made for later

claims in rule 26A.16. It is a matter for the court's discretion. Given what has passed since

the interlocutor of 17 June 2022 was pronounced, I am quite satisfied that I should accede to

the pursuer's motion. Consequently, the period of one year will run from the date of the

interlocutor to which this note has been appended. I am, however, prepared to add the

qualification that the one year period shall expire if proof on the merits in the group

proceedings is allowed prior to its expiry, subject always to the right of the court to allow a

later claim under rule 26A.16.

[44]

Parts (2), (3) and (4) of the pursuer's motion seeking the extension of time sought

dispensation from the requirements of rule 26A.14 relating to the addition and/or removal of

claimants from the group register in favour of a more practical highlighting in colour of new

and departing claimants on the group register. These aspects of the motion were not

addressed in detail at the hearings before me. However, the interlocutor of 17 June 2022, at

paragraphs [3]-[5], has already addressed the same issues and I therefore refuse parts (2), (3)

and (4) of the motion as unnecessary. Parts (5) and (6) are more problematic in as much as

they seek to dispense with the requirements in rule 26A.15(3) and (5) for lodging and

intimating, within a 21 day timescale, changes to the group register. Standing my decision

in favour of a short sist of the group proceedings for the reasons already mentioned I

consider that this part of the motion is probably better dealt with in the context of any

application made meantime to recall the sist for the lodging of a revised group register.

Those parts of the motion I will refuse in hoc statu.