There have been four recent examples[1] of groups of African claimants seeking redress before the English Courts in respect of alleged wrongs committed and causing damage in African nations by local subsidiaries of English-headquartered multinational groups.

Such claims have so far enjoyed variable success before the English Courts. All have been subject to jurisdictional challenges on the basis that the claims against the English 'anchor' defendants had no reasonable prospect of success and/or were an abuse of process (though only one such challenge has succeeded). More recently, the claimants in the Jalla Case suffered a setback when the Court of Appeal found that the claims could not properly be pursued on a representative basis by the named claimants.

This article will examine briefly the procedural challenges faced by groups of African claimants seeking to have their claims heard in England, before considering briefly what the future may hold in this area.

JURISDICTIONAL DIFFICULTIES

English appellate Courts have addressed the subject of when a claim in tort against a foreign subsidiary of a parent company domiciled in England may be pursued in the English Courts three times in as many years, in the much publicised 'triumvirate' of cases comprising the Unilever Case (before the Court of Appeal), Vedanta Case and subsequent Shell Case (each of which reached the Supreme Court).

Each of these decisions was concerned, albeit only at a preliminary stage, with the question of whether the English parent company being used as an 'anchor' defendant could arguably have owed a duty of care in tort to the claimants in respect of the activities of its local subsidiary. It is important to note that none of these decisions involved a definitive answer to this question; they were concerned only to establish whether the claims were sufficiently arguable to proceed to trial. More recently, the Technology and Construction Court in the Jalla Case[2] dismissed a similar jurisdiction challenge.

The commentary on these cases, including our own, identifies a liberalising trend in the decisions of the Supreme Court, which appear to make it much more likely that group tort claims being brought in England with English parent companies as the 'anchor' defendant will survive jurisdiction challenges. Prior to the Supreme Court's decision in the Shell Case, the success rate for the claimants in these three cases being permitted to take their claims to trial in England was 1 out of 3 (only the Vedanta Case was to proceed to trial). The reversal of the Court of Appeal's decision in the Shell Case now makes the score 2-1 in the other direction.

The proper approach to the assessment of jurisdictional issues, even in complex and delicate cases such as these, is to assume, in the claimants' favour, that pleaded allegations of fact are true and will be proven at trial (unless demonstrably untrue), and to assess whether, as a matter of law, those facts are capable of supporting the claim that the claimants seek to pursue. This is not a difficult 'hurdle' to clear.

ORGANISATIONAL DIFFICULTIES

The opportunity presented to potential claimants by the Supreme Court's decisions in the Shell Case and the Vedanta Case does, however, give rise to the more prosaic difficulty highlighted in the Jalla Case – how are actions in England on behalf of large groups of claimants to be organised?

Group litigation in England had traditionally been pursued using the Court's ordinary case management powers to order that groups of cases be case managed and tried together. However, in the case of particularly large groups or complex litigation, it is easy to see that limitations would arise in relation to this approach[3].

The claimants in the Jalla Case sought to take the litigation forward as a representative action, in which one or more claimants represent the other members of class, on an 'opt-out' basis, who must all have “the same interest in a claim”. Claimants in a representative claim must also all seek the same remedies pursued on a 'lowest common denominator basis'. The claimants in the Jalla Case failed to convince the Court of Appeal[4] that they all had the same interest in their proposed claims for 'remediation relief' (i.e. damages calculated by reference to the cost of remedying the damage done by the allegedly tortious acts of the defendants) – in particular there were likely to be significant differences in their respective cases on quantum and causation, and different claims were likely to give rise to different potential limitation defences.

The claimants in the Vedanta Case, however, had more success progressing their claims by means of a Group Litigation Order, an alternative, and less strictly controlled, form of group litigation available in England. Group Litigation Orders (GLOs) are becoming increasingly popular and over a hundred GLOs have now been granted in England. Under a GLO, claims must give rise to “common or related” issues of fact or law and each claimant commences a claim in their own right (known as 'opting in'). A GLO permits some differences in the claims pursued by different members of the group and, while a trial will determine collectively the contested issues of fact or law, damages are assessed for each individual claimant (or category of claimant) separately. Despite its growing familiarity and success, however, there are limitations on the GLO model for mass tort cases in remote regions, where the 'opt in' model significantly increases the administrative burden on those managing the claims.

Funders and solicitors seeking to advance cases of this nature will have to give careful thought to whether either of these procedural options is suitable in a particular case.

WHAT NEXT?

Are the floodgates about to open such that the English Courts become seized of a large number of claims being brought by groups of African claimants in respect of torts committed in Africa? Not necessarily.

We predicted in March 2021 that the decisions of the Supreme Court in the Shell Case and the Vedanta Case were likely to lead to increased interest from litigation funders and claimant-focused law firms who might now be tempted to seek out potential groups of claimants, in Africa and elsewhere, who may have good claims in respect of alleged wrongs committed by multinational companies. There does not yet appear to be any evidence of a dramatic surge in cases of this nature.

Two potential explanations suggest themselves as to why the floodgates may remain closed for the time being:

1. The first challenge is the organisational one identified above. Whilst England is well served by large law firms possessing the wherewithal to manage large scale group litigation and experienced professional litigation funders, its procedural law is not currently particularly accommodating of litigation this nature, as discussed above.
2. Whilst the approach of the English Courts to questions of jurisdiction has thus far been relatively permissive, the issue remains not entirely straightforward. Particularly following Brexit (as a result of which the Brussels Regulation and questions of mandatory jurisdiction fall out of domestic English law), the forum non conveniens analysis to which the judgment of Lord Briggs in the Vedanta Case alluded is likely to rise to prominence. Thus, where defendants are prepared to submit to the jurisdiction of Courts which may be more appropriate for the trial of the relevant claims, there is an increased risk that the English Courts may decline jurisdiction.