AAA & Ors v Unilever Plc & Anor

A negligence claim is not barred by foreign act of state merely because the court must consider what foreign police or authorities did. The relevant question is whether the defendant owed and breached a duty of care, not whether the foreign state acted lawfully. A parent company may owe a duty to employees or visitors of a subsidiary where the Chandler v Cape plc criteria are arguably met, but a pleaded duty must correspond with the alleged breach. A claim is bound to fail where it requires a defendant to anticipate a wholly unprecedented breakdown of law and order or effectively act as a surrogate police force. An English-domiciled defendant cannot ordinarily obtain a forum non conveniens stay. Service on a foreign subsidiary may nevertheless be set aside where the claim against the English parent has no real issue to be tried and the subsidiary claim lacks reasonable prospects of success.

The claimants, Kenyan nationals who were employees or residents of a tea plantation in Kenya, alleged that ethnic violence following the 2007 Kenyan presidential election caused deaths, injuries and property loss. They sued the United Kingdom holding company and its Kenyan subsidiary, alleging failures to foresee and prevent the violence.

The holding company sought a stay on foreign act of state, forum and case-management grounds. The Kenyan subsidiary challenged jurisdiction and service, or sought a stay. The central issues were whether the claims required adjudication on foreign acts of state, whether there was a real issue to be tried against the parent, whether the subsidiary claim had reasonable prospects, and whether England and Wales was the proper forum.

1. Foreign act of state. Following the majority reasoning in Belhaj v Straw, the claims were not barred. The court would not decide whether the Kenyan authorities acted lawfully or whether they should have done more. It would assess factually what the police did and whether, in those circumstances, the defendants’ duties required more. Liability depended on the defendants’ own duties and breaches, not on establishing unlawfulness by the Kenyan state.
2. Claim against the parent. Kenyan law applied to the subsidiary claim, and the parties accepted that Kenyan law would follow the three-stage approach in Caparo Industries plc v Dickman. The alleged scale and ferocity of the violence, and the near-total failure of the police, were not reasonably foreseeable. Nothing comparable had previously occurred on the plantation. The foreseeability limb therefore failed.
3. The parent-duty case was arguable at the Chandler v Cape plc stage because the pleaded documents could arguably show control over policies and superior knowledge. But the claim as a whole was bound to fail. The pleaded duty required all reasonable steps to ensure that the claimants did not suffer loss, while the alleged breaches were failures to secure that result. The duty would effectively require the parent to anticipate or control a breakdown of law and order and act as a surrogate police force.
4. Subsidiary and procedural consequences. The claim against the subsidiary also lacked reasonable prospects because foreseeability failed and the pleaded duty exceeded the narrower duty under the Occupiers’ Liability Act (Cap 34). No forum non conveniens stay could be granted against the English-domiciled parent under article 4.1 of the Regulation (EU) No 1215/2012, and a case-management stay would circumvent that rule. Service on the subsidiary was set aside because there was no real issue between the claimants and the parent and the subsidiary claim had no reasonable prospects of success.
5. The court nevertheless held, contingently, that the claims were not time-barred, England would be the proper forum if the merits were viable, and there was a real risk that substantial justice could not be obtained in Kenya.