Limbu v Dyson: The Death of Forum non Conveniens in Business and Human Rights and Environmental Litigation in England?

Readers of the EAPIL Blog may recall that in late 2023 the High Court of England and Wales applied the forum non conveniens doctrine and refused to hear the dispute in Limbu v Dyson Technology Ltd [2023] EWHC 2592 (KB), thus giving the defendants what I called a ‘Brexit Dividend’. I set out the facts of the case, which involves supply chain liability, in my post covering the High Court judgment and they need not be repeated here. On 13 December 2024, the Court of Appeal of England and Wales allowed the claimants’ appeal (Limbu v Dyson Technology Ltd [2024] EWCA Civ 1564; Popplewell LJ delivered the leading judgment, with which Warby LJ and Vos MR agreed).

Judgment

Before Dyson, English courts had dealt with the application of the forum non conveniens doctrine to many cases involving business-related human rights and environmental abuses. A common feature of these cases was that, where the doctrine was applicable (cf Case C-281/02 Owusu v Jackson), the natural forum was held to be in the country where the human rights or environmental abuse in question occurred and the jurisdiction of English courts depended on whether justice could be obtained in the foreign natural forum. This was the key issue in landmark cases like Connelly v RTZ, Lubbe v Cape and Vedanta. In cases like this, the claimant starts on the back foot, since they have to persuade the court that there is a real risk that they will not obtain substantial justice in the natural forum, always a difficult task that involves serious comity concerns.

Dyson is, to the best of my knowledge, the first reported case where an English court has held that, where a foreign claimant sues a multinational enterprise headquartered in England for business-related human rights abuses occurring abroad, the natural forum for the litigation is England if the defendant’s liability is claimed to arise from decisions made or omitted to be made in its English headquarters and if the claimant has access to high-quality legal representation in England (referred to as ‘a “Tesla” service’ by the Court of Appeal at [59]). The consequence of this is that England is the appropriate forum and there is no need for the court to assess the quality of justice in foreign jurisdictions.

One can get a feel for the thrust of the Court of Appeal’s reasoning from the following extracts from the judgment:

the claims against Dyson UK and Dyson Malaysia do not fall to be treated as of equal importance in this regard. The claim against [Dyson UK] is the primary claim… The reality is that Dyson UK is the principal protagonist and Dyson Malaysia a more minor and ancillary defendant to the claim against [Dyson UK]. [36]

The case against Dyson UK was the primary claim and it was necessary to focus particularly on the issues which would arise in relation to that claim. The promulgation of the policies took place in England and their relevance to the Vedanta routes to whether there existed a duty of care in negligence, including the allegation that they are flawed, points towards England. The allegation of breach by Dyson UK in failing to take steps to see that the policies were implemented in Malaysia, and failing to respond adequately to what was or ought to have been known about the abuse, which is at the heart of the allegations of breach for both the negligence and other tort claims, is an allegation of a failure occurring amongst the management in England and is alleged primarily to have occurred in England, although it will also focus to some extent on conduct in Malaysia. The complaints made by Mr Hall [a British specialist in human and migrant rights] were made to Dyson UK and the alleged failure to take steps to act on them is primarily a failure of English personnel in England. [38]

the main focus of the trial would be…on Dyson UK’s role and activity in England. [39]

In a case such as the present, where there is a huge imbalance between the impoverished and vulnerable claimants and the well-resourced and commercially experienced defendants, and the allegations are of very serious human rights abuses, there is a particular need to ensure equality of arms in the conduct of litigation if justice is to be served… If the defendants can be expected to have the very high standard of legal service in Malaysia which their resources permit, but the claimants only a lesser standard, whereas in England the claimants will also be represented by experienced and well-resourced solicitors, as the evidence establishes that they will, that is a factor, although only one factor, which favours England as a more appropriate forum. This is not something which gives rise to a real risk of substantial injustice at Spiliada stage 2. However, it is a consideration in the overall assessment of the appropriate forum in which the case may most suitably be tried, because inequality of arms in one of the two fora is a factor pointing to the other as more appropriate. [59]

The bulk of the documentation in the case is likely to be that relevant to the central issue of responsibility for the alleged abuse in the supply chain. That will predominantly be located at Dyson UK, where the policies were devised and promulgated and where the alleged failures to implement them will have taken place. So too will be documents relevant to what Dyson UK knew and how it responded. [66]

Comment

At the moment, London is probably the leading global centre of transnational business and human rights and environmental litigation. The Court of Appeal judgment in Dyson cements this position of London even further, since it limits the operation of the forum non conveniens doctrine in this context. The judgment, however, leaves open at least three broader questions.

First, can the Court of Appeal’s approach be applied not only in supply chain liability cases but also in cases involving parent company liability (i.e. cases involving ‘foreign direct liability’ in general) or even climate change? I do not think there is anything in the judgment that restricts this approach to supply chain liability cases.

Second, should English courts be getting the lion’s share of transnational business and human rights and environmental litigation, at the expense of the development of expertise in other countries, especially in the Global South? I am not sure that this is the case, despite occasional victories that victims of business-related human rights and environmental abuses have had in England.

Third, the business and human rights movement has a very negative view of the forum non conveniens doctrine. But the Court of Appeal judgment in Dyson shows that the doctrine is flexible enough to be applied in a ‘business and human rights-friendly’ way. Instead of focusing its efforts on trying to get rid of the forum non conveniens doctrine, an unlikely prospect in common law countries that do not have other mechanisms to deal with parallel litigation, which is a possibility in all transnational litigation, including business and human rights and environmental litigation, perhaps the better strategy of the business and human rights movement would be to call for the application of the doctrine in a ‘business and human rights-friendly’ way. For a well-elaborated academic proposal on how to achieve this, which is in line with the Court of Appeal judgment in Dyson, see Ekaterina Aristova’s recent book on Tort Litigation against Transnational Corporations, which was the subject of a recent symposium on the EAPIL Blog.

Finally, I should say that the judgment is not completely immune from technical criticism. Consider the following three points.  First, the court has arguably placed too much importance on the defendants’ domicile as a jurisdictional factor, even conflating it with presence. For instance, the following statement reads better as a summary of the reasons behind Article 4(1) of the Brussels I bis Regulation than the application of stage 1 of the Spiliada test in cases of service of the claim form without permission:

domicile…is…an important connecting factor. The reason it is an important connecting factor in relation to jurisdiction is because…domicile here connotes a degree of permanence and allegiance to the country’s institutions, including its courts, which means that the party can reasonably expect, and be expected, to meet claims against it in such courts in the absence of sufficient countervailing factors… The importance of presence or domicile is at the heart of the difference in the burden of proof between service in and service out cases. [34]

Second, in the future, clever claimants are likely to strategically limit their claims involving broader business-related human rights and environmental abuses to those abuses that have a link with decisions made or omitted to be made in England, thus potentially taking such claims out of their wider contexts and achieving a degree of forum shopping. Third, if the ability to obtain ‘a “Tesla” service’ in England is a relevant and strong factor under stage 1 of the Spiliada test, is it not something that systemically works in favour of proceedings in England, given the high-quality of London litigators and deep pockets of London litigation funders?

It is for these and similar reasons that one cannot say for certain that the Court of Appeal judgment in Dyson is the last word on the application of the forum non conveniens doctrine in business and human rights and environmental litigation in England. But it has been nearly two months since the judgment and, to the best of my knowledge, no permission to appeal has been granted.