The Court of Appeal (the Court) in England has allowed the claimants' appeal in Limbu & others v. Dyson Technology Limited & others¹ determining that England rather than Malaysia is the appropriate forum for the claims (forum conveniens). The Court overturned the decision of the High Court and reaffirmed the willingness of English courts to hear claims against English-domiciled corporations relating to the actions or omissions of overseas group companies as well as within the broader supply chain.

The decision marks the first time the Court has accepted jurisdiction over an English-domiciled "anchor defendant" and its foreign domiciled group company following the end of the Brexit transition period, and therefore in accordance with English common law principles rather than the Recast Brussels Regulation.

The claims in brief

Nepalese and Bangladeshi workers brought claims in tort and unjust enrichment against three companies in the Dyson group in England (two companies were domiciled in England and the third in Malaysia) (together, Dyson). The claims under Malaysian law concern disputed allegations of forced labour, abusive working conditions and torture at factory facilities in Malaysia that manufactured components under contract for the Dyson group.

The defendants challenged the jurisdiction of the English courts to hear the proceedings on the basis that the proper forum was Malaysia. In October 2023, the High Court found that Malaysia was "clearly and distinctly more appropriate"² as the forum for the claims and that there was no real risk that the claimants would be unable to obtain justice in Malaysia. The High Court noted that "substantial justice" does not require that a party receive the same "Rolls-Royce" service (or, as the judge preferred to call it, "Tesla" service) as would be available in England.³

In support of the jurisdiction challenge, Dyson provided (apparently influential) undertakings to the High Court regarding the way in which it would approach any proceedings brought against it in Malaysia, including to submit to the jurisdiction of the Malaysian courts and to provide financial support to the claimants in the proceedings.

The claimants appealed.

Reviewing the High Court's findings

The Court unanimously held that the High Court judgment involved multiple errors of principle, including in particular:

• Domicile of the primary defendants: The Court found that the High Court judge failed to have sufficient regard to the domicile of the "principal protagonists" (being the Dyson UK entities) in England, which was described as an "important connecting feature".
• Centre of gravity: The judge was also found unduly to have focused on the location of the alleged harm in Malaysia without having sufficient regard to other territorial links to England, such as the promulgation, monitoring and audit of mandatory group-wide supply chain policies by employees and officers in England.
• Risk of irreconcilable findings: The judge was found to have erred in his assessment of the risk of an inconsistent judgment arising out of separate defamation proceedings initiated by Dyson in England. The Court emphasised the English courts' capacity to manage such risks through coordinated and flexible case management, which may involve split trials, lead cases and the separate determination of particular sets of issues.
• Dyson's undertakings: The Court noted that the undertakings provided by Dyson were "unprecedented" in English court proceedings and were problematic in various ways, and therefore should not have been relied on by the judge as a satisfactory mechanism for ensuring the claimants' access to justice in Malaysia. The Court found that they gave rise to a potential conflict of interest, were limited to the scope of the claims as particularised at an early stage of the proceedings and could be used to give the defendants a tactical advantage.

The Court's assessment

Conducting its own evaluation, the Court concluded that England is "clearly and distinctly the appropriate forum" for the case. Notably, the claimants' inability to fund their claims in Malaysia was deemed to be a significant barrier to their access to justice there, making England a more viable forum. The Court considered itself equipped to deal with issues involving Malaysian law as a matter of expert evidence and, in any event, considered the disputes as to Malaysian law to be relatively narrow. Other relevant factors included the location of the bulk of relevant documents, the balance of convenience for witnesses and the practicalities of party attendance.

Conclusion

The Court's decision reaffirms the English courts' willingness to establish jurisdiction in cases with substantial connections to England where the alleged harm takes place abroad, including those involving supply chain liability issues (which are an observable trend in the UK and more widely). The Court made it clear that jurisdiction in such cases will be established where England is the natural or appropriate forum to hear the claims, and provided useful guidance on the importance of considering territorial links in deciding forum and the flexible nature of case management available in the English courts to mitigate the risk of irreconcilable findings stemming from related proceedings.

We anticipate that claimant law firms will continue to focus on claims against English-domiciled companies arising in jurisdictions where it is more difficult for defendants to establish that access to justice can be achieved, and in circumstances where there are relevant connections to England. 

As at the time of publication, the defendants have not indicated whether they will apply for permission to appeal. Subject to that question of appeal, the key questions in this case now are (i) how far do the duties of UK-based companies stretch to the activities of contractors and suppliers; and (ii) when does seeking to ensure acceptable working conditions give rise to consequences where those standards are not met in the supply chain?

1. [2024] EWCA Civ 1564.↩
2. [2023] EWHC 2592 (KB), at [122].↩
3. Ibid, at [62].↩