Dhan Kumar Limbu & Ors v Dyson Technology Limited & Ors

In a mixed case involving defendants served within and outside the jurisdiction, the appropriate forum must be assessed holistically, while respecting the different burdens of proof. The court seeks the single jurisdiction in which all claims can most suitably be tried in the interests of the parties and the ends of justice.

A domestic defendant’s domicile is an important connecting factor. The court must identify the principal protagonists and evaluate the likely real focus of the trial, rather than treating the location of the underlying harm as decisive. Funding, equality of arms, attendance, documents and the practical conduct of litigation may establish that England is clearly and distinctly the appropriate forum.

Twenty-four Nepalese and Bangladeshi migrant workers alleged that they had been trafficked to Malaysia and subjected to forced labour and abusive working and living conditions while manufacturing components in the Dyson supply chain. They sued two English Dyson companies and one Malaysian group company in negligence, accessory tort liability and unjust enrichment. Malaysian law governed the claims.

The English companies, served as of right, sought a stay on forum non conveniens grounds. The Malaysian company sought to set aside permission for service out under Civil Procedure Rules 1998, paragraph 3.1(3) of Practice Direction 6B and rule 6.37(3). The Deputy High Court Judge held that Malaysia was clearly and distinctly the more appropriate forum and that there was no real risk of inability to obtain substantial justice there.

The central issues were whether that evaluative decision involved errors of principle and whether England or Malaysia was the forum in which the claims could most suitably be tried.

1. Appeal allowed. The Deputy High Court Judge made several errors of principle, so the Court of Appeal was entitled to evaluate the forum question afresh. England was clearly and distinctly the appropriate forum.

2. In a mixed service-in and service-out case, the court must consider the appropriate forum holistically and in the round. It seeks a single jurisdiction in which the claims against all defendants may most suitably be tried. This does not remove the distinct burdens: defendants served as of right must show another forum to be clearly and distinctly more appropriate, while a claimant serving out must show that England is clearly appropriate.

3. The judge wrongly omitted the English domicile of the two principal defendants. Domicile connotes permanence and allegiance to the country’s institutions, including its courts. The English companies were the principal protagonists; the Malaysian company was a minor and ancillary defendant. The litigation would be coordinated and conducted from England for all defendants, which was a significant connecting factor.

4. The judge also adopted an unduly one-sided view of the case’s centre of gravity. The location of the alleged abuse and harm in Malaysia mattered, but the probable focus of trial included policies devised and promulgated in England, alleged failures by English management to implement them or respond to known abuse, and enrichment and claimed proprietary remedies connected with England. The relevant issues pointed overall towards England or were, at most, neutral.

5. The defendants’ undertakings to fund specified Malaysian disbursements were not a satisfactory solution. They created conflicts of interest, possible tactical advantage, privilege difficulties and no adequate mechanism for resolving disputes. Their scope depended on uncertain case-management assumptions and excluded likely contingencies, amendments and new claimants. The impoverished claimants therefore could not fund Malaysian proceedings, or at least faced a serious risk that they could not. This pointed overwhelmingly towards England.

6. Documents, witness attendance, party attendance and equality of arms also favoured England. Malaysian governing law favoured Malaysia, but the disputed issues were relatively narrow and the English court could determine them through expert evidence. Warby LJ added that English courts flexibly coordinate concurrent proceedings to minimise duplication and inconsistent findings. Vos MR agreed with both judgments.

1. Court of Appeal (Civil Division): By [2024] EWCA Civ 1564, allowed the claimants’ appeal and held that England was clearly and distinctly the appropriate forum.
2. High Court, King’s Bench Division: Clive Sheldon KC, sitting as a Deputy High Court Judge, held that Malaysia was clearly and distinctly the more appropriate forum and that there was no real risk that the claimants would be unable to obtain substantial justice there. No citation is stated.