Case - United Kingdom - AAA v Unilever PLC

AAA v Unilever PLC

Summary of facts

The claims were brought in 2015 by 218 Kenyan employees and residents of a Unilever tea plantation in Kenya against Unilever PLC and its subsidiary Unilever Tea Kenya at the High Court in England. The claimants alleged that Unilever had a duty of care towards the claimants and breached that duty by failing to protect them from the foreseeable risk of ethnic violence at the hands of third-party criminals after the presidential election in Kenya in 2007. They argue that Unilever PLC had a duty of care because it assumed responsibility for the health and safety of the employees of Unilever Tea Kenya. Unilever PLC did so by exercising a high degree of supervision over Unilever Tea Kenya’s risk assessments, health and safety and crisis management policies.

The Court dismissed the case ruling that there was insufficient evidence to demonstrate that Unilever PLC dictated or advised on the terms of Unilever Tea Kenya's crisis management plans. Without the case against Unilever PLC as a UK anchor defendant, the Court did not have jurisdiction over Unilever Tea Kenya.

Timeline

2018 Court of Appeal (Civil Division)

Jurisdiction

Applicable Law

Kenyan common law, which is considered virtually the same as English common law for this case.

Legal issues

Whether Unilever PLC and Unilever Tea Kenya owe a duty of care to the claimants.
- The claimants appealed stating that a duty of care was a real arguable issue and the case should continue.
- Unilever responded by saying that the Court should additionally rule that there was no proximity as part of the three-element Caparo test (foreseeability, proximity, imposing a duty is fair, just and reasonable).

Ruling / Outcome

The Court dismissed the appeal. It ruled, that the proximity criteria of the Caparo test for imposing a duty of care was not fulfilled. The Court did not look at other elements of the test.

2017 High Court of Justice: Queen's Bench Division

Jurisdiction

Applicable Law

Kenyan common law, which is considered virtually the same as English common law for this case.

Legal issues

Tort of negligence: the claimants allege that Unilever PLC and Unilever Tea Kenya owed them a duty of care and breached this duty by failing to prevent the foreseeable violence against them.
The defendants made an application to dismiss and stay the case because the court does not have jurisdiction.
The Court discussed three main issues:
- Whether the case cannot be adjudicated because it involved foreign acts of state (‘FSA’);
- Whether the forum non conveniens doctrine is applicable; and
- Whether there is a real issue to be tried between the defendants and parent company Unilever.

Ruling / Outcome

The court dismissed the claim overall.

The court rejected the argument that the case is not justiciable based on FAS grounds.
The court rejected the argument that the case should be stayed until a case has been brought in Kenya based on forum non conveniens. It adopted the same reasoning as used by Justice Coulson in the first instance Vedanta ruling.
The court dismissed the case because there is no real issue to be tried.
- It held that it is not arguable that Unilever PLC owed a duty of care to the claimants using the Caparo criteria (foreseeability, proximity and imposing a duty is fair, just and reasonable). While general violence was foreseeable for Unilever PLC, it was not foreseeable that such violence would happen on the plantation. Additionally, it could be argued in court that there is sufficient proximity but it would not be fair, just and reasonable to create a duty of care.
Without a case against Unilever PLC, the Court set aside the case against Unilever Tea Kenya. Moreover, the Court also held that the case against Unilever Tea Kenya has no reasonable prospect of success for the same reasons the case against Unilever PLC has no prospects of success.