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27 Mai 2022

Bryan Rutherford, Press and Journal (UK)

Aberdeen tea firm loses legal fight to stop workers suing for compensation

James Finlay (Kenya) Limited’s bid to have the legal challenge thrown out by Scotland’s most senior judges at the Court of Session in Edinburgh was rejected on Friday.

It followed a landmark ruling which allowed the multi-million-pound group action against the Aberdeen-registered firm.

Around 1,500 past and present employees have claimed they suffered musculoskeletal injuries through excessive demands placed on them by the company.

But Lesley Shand, QC who represents the employer, argued that it had been beyond the legal powers of a judge (the Lord Ordinary) to permit the group’s proceedings against her client in the first place.

She said that no common issue was before the court for its consideration and explained that there was a “vagueness” to the claims and an “absence of supporting material”...

And she added: “Where you have simply broad general contentions about something as wide as musculoskeletal injuries and a huge raft of claims in vague terms about what was unsafe – is it training, is it machinery, is it lifting? – it is not possible to discern that there is a common issue of fact”.

But the judges Lord President Carloway and Lords Malcolm and Turnbull did not agree...

The Lord President said: “The court has no difficulty in finding that the Lord Ordinary was correct”.

He explained that it was for the court to consider the validity of the claims that musculoskeletal injuries resulted from common conditions of employment by Finlays and decide whether its working practices amounted to negligence.

And Lord Carloway concluded: “The reclaiming motion is therefore refused”...

[Andrew Smith QC] told the court that repeated requests to Finlays for information were not forthcoming.

“We gave a comprehensive list of documents and materials that were being requested. That request was not responded to. A reminder was sent and that was equally ignored,” he explained.

Mr Smith criticised Finlays’ legal team for making its appeal, which he said was “entirely destined to failure”.

And he accused the defenders of using “tactics” which he claimed were “designed to cause delay in the further progress of the litigation”.

He added: “There’s an effort being made by the defenders to essentially slow the cases down and inhibit proper conduct and investigation.”

It emerged that there’s an ongoing legal battle in the Kenyan courts to prevent health and safety experts from inspecting Finlays’ working conditions.

A Sheriff Court in Scotland previously granted an order for ergonomists to carry out the testing of weights and filming, but an injunction halted their site visit.

Andrew Smith QC said: “This was not the Kenyan Government or their diplomatic office being concerned. It was on the application of James Finlay”.

The case is to be heard in the Kenyan Supreme Court on June 16 to decide whether the Scottish court order can be enforced.

Earlier this year, on April 8, Mr Smith said he obtained an interdict from the Court of Session against the destruction of medical records...