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Unilever lawsuit (re ethnic violence in Kenya)

Unilever text logo wikiIn 2016 employees and residents of a Unilever tea plantation in Kenya filed a lawsuit against Unilever PLC (the UK-domiciled parent company) and Unilever Tea Kenya Limited (the Kenyan-incorporated subsidiary) at the High Court of Justice Queen’s Bench Division in England. The claim was brought in relation to violent attacks that occurred on the plantation in 2007. The lawsuit alleges that Unilever Tea Kenya failed to protect their tea workers from the foreseeable risk of ethnic violence. 

In 2007, following local elections, numerous perpetrators(allegedly including co-workers who were employees of Unilever Tea Kenya Ltd) invaded the Unilever Tea Plantation and attacked hundreds of workers and their families (who were members of minority tribes) with clubs and machetes, killing and injuring large numbers of people.   It is alleged that Unilever placed these minority tribes in a position of particular risk, since they brought them to live and work on their Kericho Tea Plantation in large numbers, where they were surrounded by a tribe hostile to “foreigners”. Specifically, at election times “foreigners” can become the target of violent attacks.

Unilever has argued that the claims should be heard in Kenya, not in England and that the High Court should decline jurisdiction.  By contrast, the Claimants contend that it would be impossible to obtain justice via the Kenyan courts.  On 26 February 2016 and 1 March 2016, the Defendants filed applications for the claims to be stayed or dismissed, arguing that they were not justiciable in England or Wales because they require the court to adjudicate on foreign acts of state. They also applied for a stay of the proceedings, arguing that the claimant should bring their claims in Kenya and that the claims in England had been brought to improperly bring Unilever Tea into the latter jurisdiction. 

From 12 to 15 December 2016, the High Court of Justice Queen’s Bench Division heard the applications of the defendants for a stay of proceedings. The claimants argued that the Court had jurisdiction over the Kenyan company as a necessary party to the claim against Unilever PLC on the basis of a “parent company duty of care”. Moreover, they alleged that Unilever failed to take any or any adequate steps to protect the claimants from the foreseeable risk of attack. In particular, they argue that the company failed to identify the specific risk of post-election violence, to put in place adequate crisis management or security plans, and to take any adequate measures to protect the claimants in response to the violence.

On 27 February 2017, the High Court ruled that it did not have jurisdiction to hear the case. The court rejected the majority of the Defendants’ arguments but found that the claim against Unilever had no reasonable chance of success because, although the risk of violence was foreseeable in Kenya and in the Kericho area, it was not arguably reasonably foreseeable that violence would occur on the Plantation itself. The High Court of Justice therefore struck out the Claimants’ case. 

The Court of Appeal heard the Claimants’ appeal on 24-26 April 2018 and delivered its judgment on 4 July 2018.  The Court of Appeal did not deal with the substance of appeal on the foreseeability of the violence, but instead has found that there was insufficient evidence to demonstrate that Unilever PLC dictated or advised upon the terms of Unilever Tea Kenya’s crisis management plans (thus overturning the finding of the first instance Judge).   As a result, there was no jurisdiction over the English domiciled parent company.  The claimants will be seeking leave to appeal to the Supreme Court and have expressed regret that, instead of dealing with the substance of the issues raised, Unilever has sought to hide behind its’ corporate structure to block the claims from proceeding.  

News:

Court of Appeal upholds AAA v Unilever judgment, declining to allow parent company liability claim, Freshfields Bruckhaus Deringer, 12 July 2018
Parent Company Liability: Further Developments from the English High Court, 19 June 2017, Brodies
Another successful challenge to jurisdiction of English Court to hear claims against English domiciled parent companies in relation to acts of subsidiaries abroad, Herbert Smith Freehills, 8 March 2017

Company documents:

Unilever Group reply to CORE post ("Unilever: Time for real leadership on human rights") referring to Kenya tea workers, Unilever, 23 July 2018
Unilever Group reply to letter dated 19/04/2018 from REDRESS, CORE, ACCA and Kituo Cha Keria alleging human rights policy incosistency, Unilever Group, 30 April 2018

NGO documents:

- Unilever: time for real leadership on human rights, CORE (UK), 17 July 2018
Unilever PLC should redress harm to survivors of post-election attack in Kenya, REDRESS, 20 April 2018
- Letter to Mr. Paul Polman concerning corporate accountability issues in relation to a case involving Unilever Tea Plantation in Kenya, REDRESS, ACCA, CORE, Kituo Cha Sheria, 19 April 2018

Legal documents: 

- AAA & Ors v Unilever PLC and Unilever Tea Kenya Limited, Court of Appeal (Civil Division) Queen's Bench Decision, 4 July 2018
AAA & Ors v Unilever PLC and Unilever Tea Kenya Limited, High Court of Justice Queen's Bench Division decision, 27 February 2017

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All components of this story

Article
13 September 2018

Inaccessible Remedies: The Unrealistic Expectations of Proof in AAA v. Unilever

Author: Lisa Kadel, Tara Van Ho and Anil Yilmaz Vastardis

...[T]he Court of Appeal (‘CA’) in England dismissed the case of AAA v Unilever in which victims of ethnic violence claimed that parent company, Unilever PLC (‘Unilever’), and its Kenyan subsidiary, Unilever Tea Kenya Ltd (‘Unilever Kenya’) were responsible for injuries they suffered on Unilever Kenya’s plantation during 2007’s post-election violence. Several aspects of this case...raise important questions from a business and human rights perspective...

...For the case to continue, the court needed to find that the Claimants’ presented a good arguable case...This required the claimants’ to show a prima facie case that Unilever owed a duty of care to the claimants...The High Court judge dismissed the claim on lack of foreseeability but the CA upheld the dismissal while focusing on the lack of proximity.  The CA concluded that there was insufficient evidence to demonstrate that Unilever dictated or advised upon the terms of Unilever Kenya’s crisis management plans...

The standard set by Court raises the threshold for a prima facie case before proceeding to trial. By requiring the Claimants to prove the scope and level of Unilever’s involvement in the Kenyan subsidiary’s risk management, the Court created an insurmountable burden of proof for victims...

This level of proof effectively shields parent companies from any claim arising from subsidiary business.  This appears contrary to the letter and spirit of the UN Guiding Principles on Business and Human Rights (‘UNGP’ or ‘Guiding Principles’), which requires states and businesses to ensure victims have access to adequate and effective remedies...[T]he UK maintains laws that allow for the evasion of responsibility and situations of impunity...

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Company response
23 July 2018

Response by Unilever Group

Author: Unilever

"Unilever Group reply to CORE post (“Unilever: Time for real leadership on human rights”) referring to Kenya tea workers", 23 July 2018

 

Download the full document here

Article
17 July 2018

Unilever: time for real leadership on human rights

Author: Marilyn Croser, CORE (UK)

Last week the UK Court of Appeal dismissed a case brought by 218 Kenyan tea plantation workers and residents, who claim that consumer goods giant Unilever failed to protect them from post-election violence in 2007...Of the 218 claimants, seven were killed, 56 were gang raped and the others were subjected to brutal attacks that have left them with lifelong physical and psychiatric injuries.  The claimants argue that the plantation attacks were foreseeable...

The Court of Appeal dismissed the case on the grounds that the claimants had provided insufficient evidence to show that Unilever PLC had advised its subsidiary Unilever Tea Kenya on crisis management plans...Unilever has so far refused to disclose its most relevant documents to the Court, choosing instead to hide behind its corporate structure to evade liability...[A]s the Court noted, the victims were unable to obtain justice through Kenyan courts for fear of reprisals.  This does not chime well with Unilever’s ambition to remain a corporate leader on human rights and runs contrary to the statement in its 2017 updated human rights report that ‘Effective Remedy’ is one of its five focus areas... 

In this case Unilever has shown its commitment to the UNGPs to be at best partial, and at worst illusory. The company’s approach to this case risks undermining the very Principles that it supports and promotes...The Kenyan victims in this case have been denied remedy...Unilever has an opportunity to show real leadership on human rights by listening to and helping its former employees and their family members who have suffered the most appalling human rights abuses...

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Article
4 July 2018

AAA & Others v Unilever Plc & Anor - Appeal judgement

Author: England and Wales Court of Appeal (Civil Division)

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Company response
30 April 2018

Response by Unilever Group

Author: Unilever Group

UNILEVER GROUP REPLY TO LETTER DATED 19/04/2018 FROM REDRESS, CORE, ACCA AND KITUO CHA KERIA ALLEGING HUMAN RIGHTS POLICY INCONSISTENCY

The Unilever Group Human Rights Policy Statement (available online here) describes our commitment to respect universal principles, our due diligence processes and our governance. Defending our legitimate legal rights where we believe we are correct to do so in no way diminishes these commitments. However, as this matter is before the courts, and for the security reasons set out below, we can’t respond in detail. Nevertheless, we wish to make several important observations:
• The letter contains material factual inaccuracies and allegations which are unsupported by the evidence.
• Current court proceedings are concerned principally at this stage with whether the English Courts have jurisdiction to hear the claims and there has been no ruling on the merits of the claim.
• After the first hearing in 2016, the High Court Judge ruled that the case should not be heard in the English Courts as the invasion of Unilever Tea Kenya was not foreseeable and that it was not fair, just or reasonable to impose a duty on Unilever PLC to anticipate and protect against a general breakdown of law and order or to ensure that the claimants were protected from the criminal acts of the invaders.
• The Claimants appeal against this decision was heard by the Court of Appeal in the week of 23rd April 2018 but the outcome will not be known for some time.
The long involvement in this matter of the NGOs who sent this letter means they should be aware that the Claimants who brought the case against Unilever submitted to the Court that any publicity could put them at risk and their identities are also protected by anonymity. Accordingly, Unilever has taken care to avoid any publicity and believes that drawing attention to the case via this letter, social media, and any ensuing press interest, is regrettable. We hope that all involved will respect the Claimants security concerns in the future.
Further information on Unilever’s approach to Human Rights is set out in a report available online here. This is a 2017 follow up to the ground breaking 2015 Unilever Human Rights report, which was the first ever such report published by a business to comprehensively use the UN Guiding Principles Reporting Framework. 

Download the full document here

Article
20 April 2018

Unilever PLC should redress harm to survivors of post-election attack in Kenya

Author: REDRESS

Unilever PLC should reconsider the way it is dealing with a case brought by hundreds of survivors of attacks at one of its tea plantations in Kenya during the post-election violence in 2007, four human rights groups said in a letter sent to Unilever PLC’s CEO, Paul Polman.  The letter was sent on 19 April 2018 ahead of a hearing in this case that will take place on 24-26 April before the Court of Appeal in London.  It was sent by REDRESS, the African Coalition for Corporate Accountability (ACCA), CORE and Kituo Cha Sheria...The claim arises out of allegations that Unilever failed to protect their tea workers from the ethnic violence in 2007 at Unilever Tea Kenya Ltd., one of its subsidiaries...The claim was brought by 218 claimants, including the families of 11 victims who were brutally killed, and a large number of people who suffered serious violent attacks, including gang rape.  The claim alleges that Unilever had placed their workers in a position of serious risk because many of the workers were from tribes which were not local to the area, so were specific targets of violence from the majority tribe...at times of social unrest...The claimants allege that the relevant crisis management expertise resided in Unilever PLC and that these experts were responsible for ensuring that proper procedures were in place in Unilever Tea Kenya and that people were trained...

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Article
19 April 2018

Letter to Mr. Paul Polman concerning corporate accountability issues in relation to a case involving Unilever Tea Plantation in Kenya

Author: REDRESS, African Coalition for Corporate Accountability (ACCA), CORE, Kituo Cha Sheria

Read the full post here

Download the full document here

Article
8 March 2018

Another successful challenge to jurisdiction of English Court to hear claims against English domiciled parent companies in relation to acts of subsidiaries abroad

Author: John Ogilvie & Daniel Hudson & Claire Stirrup & Angela Liu, Herbert Smith Freehills

The High Court has struck out a claim against a UK incorporated parent company and set aside permission to serve a claim form out of the jurisdiction on its Kenyan domiciled subsidiary: AAA & Ors v Unilever Plc & Anor [2017] EWHC 371 (QB). The court held that there was no real issue to be tried between the claimants and the parent company, and so there was no basis on which to establish jurisdiction over the claim against the subsidiary (which the court considered had no reasonable prospect of success in any event). We understand that the court's decision is subject to appeal...We note that both Okpabi and AAA are subject to appeal and so we anticipate that the application of Chandler v Cape to the considerations of the second limb of Caparo will be considered at the appellate level in the near future.

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Article
1 March 2017

AAA and Others v Unilever PLC and Unilever Tea Kenya LDT [2017] EWHC 371 (QB); International personal injury & justiciability

Author: John-Paul Swoboda, International & Travel Law Blog

In this post, Philip Mead of 12 King's Bench Walk considers the third decision in a series of African cases where complex group action personal injury claims have been sought to be litigated in the English Courts, following Lungowe v Vedanta Resources Plc...and Okpabi v Royal Dutch Shell...The Claimants were Kenyan nationals who were the victims of inter-ethnic violence carried out by armed criminals on the Plantation (being a tea plantation operated by the Second Defendant, a Kenyan registered company) after the Presidential election in Kenya in 2007. The First Defendant, an English registered company was the ultimate holding company of the Second Defendant....The Judge followed the approach of Coulson J in Vedanta. The following issues in the judgment are of interest to practitioners involved in international personal injury claims: (1) granting a stay against an English domiciled company on the basis that the claim is inherently weak or on case management grounds; (2) whether there was a real issue to be tried between the Claimants and the First Defendant; (3) was it reasonable for the issue between the First Defendant and the Claimants to be tried in England and Wales; (4) whether the Second Defendant was a necessary and proper party to the Claimants' claims against the First Defendant; (5) whether the courts of England and Wales are the proper forum for the claim against the Second Defendant; (6) whether the courts of England and Wales are the appropriate forum...

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