Dhan Kumar Limbu & Ors v Dyson Technology Limited & Ors

In a forum dispute, the court applies the Spiliada approach. The claimant must establish England as the proper forum in a service-out case; in a service-in case the defendant must show that a foreign forum is clearly and distinctly more appropriate. Where several defendants and claims are involved, the court seeks the jurisdiction in which the claims may most suitably be tried together, while treating fragmentation and inconsistent judgments as important but not necessarily decisive factors.

At the second stage, a stay should be refused only where cogent evidence establishes a real risk that substantial justice will not be available abroad. The absence of English-style funding, representation or procedure is insufficient unless the claim could not realistically be tried. A lower level of service than would be available in England does not itself amount to a denial of substantial justice.

Twenty-four migrant workers, or the representative of a deceased worker, brought claims in England against three companies in the Dyson Group. They alleged forced labour and abusive working and living conditions at Malaysian supplier factories, together with negligence, joint liability for intentional torts and unjust enrichment.

The English-domiciled defendants sought a stay in favour of Malaysia. The Malaysian defendant sought to set aside service out of the jurisdiction. The parties relied on extensive expert and factual evidence concerning forum connections, Malaysian law, funding, legal representation, remote evidence, disclosure and the risk of inconsistent judgments. The central issues were whether Malaysia was clearly and distinctly the more appropriate forum and whether the claimants faced a real risk of being unable to obtain substantial justice there.

1. Disposition. The court granted a stay of the proceedings against the English defendants and set aside the order permitting service on the Malaysian defendant, together with the service effected under that order.
2. Stage 1. Applying Spiliada, Malaysia was clearly and distinctly the more appropriate forum. The claims had their centre of gravity in Malaysia: the alleged mistreatment, harm, relevant supplier operations and most underlying evidence were there; Malaysian law governed the claims; and the novel issues of Malaysian law were better determined by Malaysian judges. The possibility of irreconcilable judgments arising from separate English defamation proceedings was significant, but did not outweigh the Malaysian connections.
3. The claims against the English defendants could not be treated as independent of the underlying Malaysian events. Their policies and alleged omissions occurred partly in England, but liability depended on establishing the alleged mistreatment in Malaysia. The possibility of severing the claims therefore did not alter the Stage 1 conclusion.
4. Stage 2. The claimants did not establish a real risk that substantial justice would be unavailable in Malaysia. The court approached the evidence with anxious scrutiny and did not conduct a mini-trial. It rejected the contention that migrant workers, the novelty and complexity of the claims, the need for expert evidence, or the absence of English-style legal aid would itself prevent justice.
5. The evidence established a realistic prospect of suitably qualified Malaysian representation, including representation on a partial contingency basis. Section 112 of the Malaysian Legal Profession Act 1976 prohibited payment only in the event of success, but the court accepted the Malaysian judicial and professional evidence that a basic fee combined with a success fee was lawful and established in practice. The defendants’ undertakings, potential NGO assistance and available case-management measures further reduced the alleged funding risk.
6. The court concluded that Malaysia could provide substantial justice, even though the claimants might receive a less comprehensive service than in England. The stay and service orders followed. Costs were reserved for further submissions.

This was a first-instance jurisdiction decision. The judgment refers to the separate defamation proceedings, in which the Court of Appeal reversed the decision of Nicklin J.