Limbu & Ors v Dyson Technology Ltd & Ors

Factual and Procedural Background

This appeal concerns migrant workers from Nepal and Bangladesh who brought claims against three companies within the Dyson group. The claimants allege trafficking to Malaysia and subsequent forced labour, abusive working and living conditions, and, in some cases, detention and assault, occurring in factories manufacturing components for the Dyson group supply chain. The issue is not the merits of the claims, which have a real prospect of success, but whether England or Malaysia is the proper forum for the claims.

The first and second defendants (collectively referred to as Dyson UK) are English companies served in England and sought a stay on forum non conveniens grounds. The third defendant (Dyson Malaysia) is a Malaysian company served out of jurisdiction with permission and sought to set aside service on similar grounds.

The Deputy High Court Judge below conducted a three-day hearing in July 2023, concluding Malaysia was the more appropriate forum and that there was no real risk of denial of justice there. The claimants appeal both aspects of this decision.

The claimants are 24 nationals of Nepal or Bangladesh, recruited between 2011 and 2022 to work in two Malaysian factories operated by ATA Industrial and Jabco Filter System (collectively ATA/Jabco). Most claimants have returned to their home countries; a few remain in Malaysia or the UAE. The defendants are three Dyson group companies: two English-incorporated entities (D1 and D2) operating from the UK, and one Malaysian company (D3) contracting with ATA/Jabco for manufacturing.

The claims allege recruitment through brokers leading to debt bondage; breaches of Malaysian employment law including excessive working hours, denial of leave, underpayment, unlawful wage deductions, and physical abuse; forced residence in degrading accommodation with passport confiscation; and alleged complicity by the defendants in these abuses through policy promulgation, supervision, and failure to prevent or remedy abuses.

The claims include causes of action in negligence, tort (false imprisonment, intimidation, assault), and unjust enrichment, all governed by Malaysian law. The claimants seek damages for economic loss, personal injuries, aggravated and exemplary damages, and restitutionary remedies.

The legal principles applied are derived from the House of Lords decision in Spiliada Maritime Corp v Cansulex Ltd, focusing on forum non conveniens and appropriate forum considerations, with burden of proof varying depending on whether service was effected in or out of jurisdiction. The court considers connecting factors such as governing law, location of wrongful acts, residence or business location of parties, and risk of inconsistent judgments.

Also relevant are defamation proceedings brought by D1 and D2 in England relating to a television broadcast alleging complicity in abuse at ATA factories. There is substantial factual overlap between the defamation and current proceedings.

Before the Judge, the defendants gave undertakings to facilitate the claimants’ participation in Malaysian proceedings, including funding for costs related to giving evidence and certain disbursements.

The Judge identified and weighed six key connecting factors, concluding Malaysia was the clearly more appropriate forum at stage 1, and found no real risk of denial of justice at stage 2, leading to dismissal of the claimants’ application to proceed in England.

Legal Issues Presented

1. Whether England or Malaysia is the appropriate forum to determine the claims brought by the migrant workers.
2. Whether there is a real risk that the claimants would be denied substantial justice if the claims were heard in Malaysia.
3. The proper approach to the burden of proof in mixed service in and service out cases under the Spiliada principles.
4. The impact of overlapping defamation proceedings on the forum non conveniens analysis.
5. The adequacy and effect of defendants' undertakings regarding funding of claimants’ costs in Malaysia.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460	Establishes principles for forum non conveniens and appropriate forum analysis, including burden of proof distinctions between service in and service out cases.	The court applied its principles as the foundational test for determining the appropriate forum, focusing on connecting factors and ends of justice.
HRH Emere Godwin Bebe Okpabi v Royal Dutch Shell Plc [2021] UKSC 3	Defines circumstances for parent company liability for harm caused by foreign subsidiaries or supply chain contractors.	The court considered the allegations of defective group-wide policies and control as part of the claims against the defendants.
Lubbe v Cape Plc [2000] 1 WLR 1545	Limits the use of general public policy considerations in forum non conveniens analysis to those related to private interests and ends of justice.	The court rejected the claim that the judge erred by considering policy reasons unrelated to private interests, confirming the correctness of his approach.
JSC BTA Bank v Granton Trade Limited [2010] EWHC 2577 (Comm)	Greater weight should be given to principal or major parties in multi-defendant forum non conveniens analysis.	The court treated Dyson UK as the principal protagonist, giving greater weight to claims against it in the forum analysis.
Municipio de Mariana v BHP Group (UK) Ltd [2022] EWCA Civ 951	Illustrates flexible case management techniques to avoid duplication and inconsistent judgments in group litigation.	The court used this precedent to reject the judge’s conclusion that overlapping defamation and current proceedings were unlikely to be case managed together.
Sharab v HRH Prince Al-Waleed Bin Talal Bin Abdal-Azh Al-Saud [2009] EWCA Civ 353	On appeal by way of review, the court considers the lower court’s decision based on evidence and submissions before it.	The court applied this principle in assessing the judge’s decision on the risk of inconsistent judgments with reference to the position at the hearing.
VTB Capital Plc v Nutritek International Corpn [2013] 2 AC 337	Confirms that policy reasons relating to foreign courts deciding foreign law issues are relevant connecting factors.	The court endorsed the judge’s approach to policy reasons as valid in the forum non conveniens assessment.
Dream Property Sdn Bhd v Atlas Housing Sdn Bhd [2015] 2 MLJ 441	Malaysian law on unjust enrichment differs from English law in assessment of unjustness.	The court noted this difference but found it not in dispute and manageable in the forum analysis.
Perry v Lopag Trust Reg [2023] 1 WLR 3494	Where foreign law is similar to English law, English courts can competently determine novel foreign law issues.	The court relied on this to support its view that English courts are well equipped to deal with Malaysian law issues.
Mitchell v News Group Newspapers Ltd; Rowland v Mitchell [2014] EWHC 2615 and 4014/4015 (QB)	Demonstrates that concurrent trials on overlapping issues can be successfully case managed.	The court cited this to support coordinated management of defamation and current proceedings.

Court's Reasoning and Analysis

The court undertook a detailed evaluative assessment of the forum non conveniens factors under the Spiliada framework, divided into two stages: identifying the appropriate forum and assessing access to justice risks.

At stage one, the court considered six key connecting factors: practical convenience, common language, governing law, location of issues, document availability, and risk of multiplicity of proceedings. The judge below had found Malaysia clearly more appropriate, primarily due to the location of the alleged abuse and governing Malaysian law.

On appeal, the court found multiple errors of principle in the judge’s assessment. Notably, the judge failed to consider the domicile of the English defendants (D1 and D2) as a significant factor favouring England, overlooked the centrality of the claims against Dyson UK and their conduct in England, and mischaracterised the risk of inconsistent judgments arising from overlapping defamation proceedings. The court held that the defamation proceedings would likely have been case managed to avoid duplication and inconsistency, contrary to the judge’s view.

Regarding stage two, the judge accepted the defendants’ undertakings as satisfactorily mitigating risks of denial of justice in Malaysia. The appellate court disagreed, finding the undertakings flawed due to conflicts of interest, lack of adequate funding mechanisms, and limitations on scope and enforceability. The court also recognized inequality of arms concerns, noting that claimants would receive lesser quality legal representation and be unable to attend trials in person in Malaysia, factors favouring England.

The court further analyzed other connecting factors, concluding that most relevant documents and witnesses were likely to be in England, the litigation would be coordinated from England, and the governing Malaysian law issues could be competently handled by English courts. The risk of multiplicity of proceedings was minimal except for the now discontinued defamation proceedings, which would have favoured England.

Overall, the court found that England was clearly and distinctly the more appropriate forum, and that the claimants faced a serious risk of being unable to obtain substantial justice in Malaysia due to funding and procedural obstacles.

Holding and Implications

The appeal is allowed. The court reversed the lower judge’s decision and held that England is the clearly and distinctly more appropriate forum for the claims to be tried.

The direct effect is that the claims will proceed in England rather than Malaysia. The decision does not establish new precedent but applies established forum non conveniens principles to the complex factual matrix, emphasizing the importance of considering all relevant connecting factors, especially domicile, the locus of key conduct, and practical access to justice concerns. The ruling highlights the court’s willingness to scrutinize undertakings offered in jurisdiction disputes and to ensure claimants’ ability to pursue claims effectively.