Introduction

This was a jurisdictional dispute in a modern slavery claim brought by 24 Nepalese and Bangladeshi migrant workers against three companies in the Dyson Group regarding working conditions in Malaysian factories. Dyson was not their employer, but the factories were part of the Dyson supply chain. As in many jurisdictional disputes, there were competing factors going both ways. This article does not provide a complete review of this case. Rather, it explores one important element : whether undertakings made by a defendant at the jurisdictional stage purportedly to address problems experienced by the claimants with the foreign system can and should turn the jurisdictional analysis in a defendant’s favour.

It is noteworthy that the Claimants have applied for permission to appeal: watch this space.

The undertakings

One of the solutions which the Defendants in Dyson alighted upon to ameliorate some of the issues identified by the claimants with the Malaysian legal system was to provide undertakings as to how they (i.e. the defendants) would act in Malaysian proceedings, if the claim was brought there rather than England. The problems included:

(a) there would be numerous disbursements, including joint expert reports, which the claimants could not afford;

(b) access to justice in that some of the claimants lived in Nepal, and others lived under the radar in Malaysia, such that the only possibility was remote proceedings: but there were issues as to whether the Malaysian courts would order a remote hearing, and if so, whether remote proceedings might be abandoned owing to technical difficulties; and

(c) there were questions as to whether a legal team in Malaysia was capable of being formed: not least because of:

(i) whether a lawyer would risk spending thousands of hours (the trial had a six month time estimate) on an uncertain outcome which might result in their receiving zero remuneration; but also

(ii) the doubted legality, and therefore the regulatory risk on the lawyer, of charging a partial success fee (a basic upfront fee with the success fee at the end).

The undertakings offered by the Defendants were these:

(i)  D1 and D2 will submit to the jurisdiction of the Malaysian courts if they are sued there;

(ii)  The Dyson Defendants will not seek security for costs or an adverse costs order against the Claimants if and to the extent such costs would not be recoverable under the Qualified One Way Cost Shifting regime in England;

(iii)  The Dyson Defendants will pay the reasonable costs necessary to enable the Claimants to give evidence in Malaysian proceedings including (if necessary) affidavit affirmation fees and other costs necessary for the Claimants to give remote evidence including travel and accommodation costs, costs associated with the provision/set-up of suitable videoconferencing technology and other costs associated with the logistics of giving evidence remotely;

(iv)  The Dyson Defendants will not oppose an application by the Claimants for remote attendance at a hearing/the trial in Malaysian proceedings;

(v)  The Dyson Defendants will pay for the Claimants’ share of the following disbursements to the extent reasonably incurred and necessary: (a) Court interpretation fees, (b) Transcription fees, and (c) Joint expert evidence; and

(vi)  The Dyson Defendants will not seek to challenge the lawfulness of any success fee arrangement entered into between the Claimants and their Malaysian lawyers.

A further undertaking was given in the course of the hearing before me: that the Dyson Defendants would not oppose an application for a split trial.”

The submissions made by the claimants went less to the principle of whether undertakings to address problems within a foreign legal system can ever in principle be acceptable, and more to the practical problems, for example that the undertaking to pay for disbursements did not address the size of the legal and financial risks to any potential Malaysian lawyers, and whether there may be a conflict of interest on the question of costs as the claimants would be negotiating with the defendants on costs.

The first instance decision

In making a decision favourable to the defendants, Clive Sheldon KC (sitting as a deputy High Court Judge) relied on the undertakings in support of a conclusion that the claimants had failed to establish that there was a real risk that substantial justice would not be achieved in Malaysia. For example, the opinion of a former Malaysian Chief Justice that remote hearing arrangements would likely suffer from technical difficulties was rejected on the basis that it did not take into account that funding would be met by the defendants, diminishing the prospect of such difficulties.

Similarly, the fact that the defendants undertook to pay for many of the disbursements took the sting out of the claimants’ criticism of the workability of a trial in Malaysia.

Analysis

Even outside jurisdictional disputes, assurances purportedly addressing potentially unacceptable risks arising from legal or other systems in a foreign state or jurisdiction are nothing new. For example, a foreign government acting in extradition proceedings may make diplomatic assurances that an individual will not be mistreated upon return, which may or may not be accepted by a domestic court. Similar issues arise in respect of whether removal might violate an individual’s Article 3 rights, including in non-prison cases such as whether a person will have sufficient access to healthcare abroad to avoid risk of rapid irreversible decline in health amounting to Article 3 mistreatment. Though there is a difference between undertakings given by a foreign state versus a private litigant, the domestic judiciary are used to analysing whether assurances affect whether the relevant real risk remains. The judge found at paragraph 147 that undertakings made by a private party are common in jurisdictional disputes: while it is common for a defendant to undertake to submit to the alternative forum, the sorts of undertakings made in this case are not altogether common.

There seems little difficulty in principle with whether undertakings such as those made in the present case are capable of being taken into account. Whether they will make a difference to the analysis are matters of fact and degree.

On one end are cases such as a £100 disbursement in the foreign jurisdiction that is unaffordable to a claimant: if a defendant undertakes to pay it, that will likely be that.

On the other are where a foreign trial will be irredeemably unjust owing to wholesale corruption in the judiciary. No matter what the defendant might undertake to do, there will still be a real risk of injustice.

One distinction which can be drawn between these two ends of the spectrum is the level of agency which the defendant giving an undertaking has: total agency for the ability to pay a £100 disbursement, little agency to remedy a corrupt judiciary.

Harder cases will be where an undertaking will have either a partial or an uncertain effect. An example might be delay.

In general, some elements of delay may be systemic and unavoidable. Nevertheless, delay can be increased or reduced by the conduct of a defendant such that an undertaking may affect matters.

Other examples are litigation funding and access to justice: if the expert evidence were different in Dyson, then the issues that arose regarding whether Malaysian lawyers would take the case and problems in the Malaysian system regarding remote hearings may have overridden any undertakings.

Furthermore, civil law jurisdictions may differ from common law jurisdictions in that a foreign court in a civil law jurisdiction may be more likely to take a point of its own motion, making an undertaking potentially less impactful.

In summary, then, undertakings may turn a case in a defendant’s favour, but much will depend on the problems in the foreign jurisdiction, and whether the defendant’s undertaking truly has the power to cure them.

Photo by Greg Bulla on Unsplash