James Finlay: Why a Scots firm faces a negligence claim from up to 1500 Kenyan workers

But Lord Weir in the Court of Session has accepted that workers who claim that conditions on Finlay' tea farms in Kenya damaged their health had a prima facie case and has allowed the group action to be heard.

It comes as the tea company, which can trace its roots back to Scotland in the 18th century, has separately come under scrutiny in Kenya over claims of exploiting tea-pickers with low rates of pay.

The landmark lawsuit against the Scottish firm argues that workers were exposed to conditions that would clearly be harmful, resulting in permanently damage to their spines.

In the allegations, the Kenyan tea pickers claim there was a routine practice of company representatives administering pain-killing drugs to employees who requested them without asking why they needed them.

James Finlay had said that the action does not meet the requirements of Scotland's rules on group litigation proceedings and should be dealt with in Kenya.

Legal representatives say the number of people involved in the case could now rise to 1,500 having been allowed to proceed.

Lord Weir in sanctioning the action said that it was not suitable to have a representative of Scottish law firm Thompsons Solicitors to become the representative party on behalf of the tea pickers in the Court of Session claim.

Andrew Smith QC said that that they would seek alternatives to lead the claim saying it could be either current or former employees.

James Finlay’s estates in Kericho, Kenya, stretch across almost 25,000 acres. It supplies big brands including Tesco, Sainsbury’s, Starbucks, the Co-op and Bettys & Taylors Group 

Lord Weir said that the positions of legal representatives and those pursuing the claim should be "separate and distinct".

"In principal, and subject to clarification on the matter of the representative party, I am satisfied that the criteria for granting [the class action] are met," he said.

He said the claim "adequately identifies issues arising from common working practices, allegedly giving rise to musculoskeletal injuries and the content of [James Finlay's] duty of care... which not only give rise at least to a prima facie case, but which are also sufficiently similar to justify the granting of permission".

He said it would be a more efficient administration of justice for the claims to be brought as group proceedings rather than by separate individual proceedings. But Lord Weir explained there was no legal authority in any juridisdiction where permission was granted to allow a member of the law firm which is pursuing the case to also act as a class action representative party.

He referred to Canadian cases where the court was concerned about the potential for "conflict of interest and the appearance of impropriety" arising from the possibility that decisions made by a representative party in group proceedings would be influenced by their financial interest as a member of the firm acting in those proceedings.

He added: "I wish to make it clear that I impute absolutely no impropriety on the part of the applicant, in putting himself forward as a representative party, far from it.

"But the broader concern I've mentioned is legitimate and no less relevant to group proceedings in this jurisdiction, which are themselves in their procedural infancy.

"The concern arises in the circumstances of this application, from the apparent blurring of the distinction between a party and its advisors, and the improbable consequence that the applicant would be issuing instructions as a representative party to itself on matters relating to the progress of the group proceedings.

"I take leave to doubt whether that was what the Scottish civil courts review had in mind, in its consideration of a role for representative bodies in group proceedings."

Mr Smith said the judge had provided "careful reasoning" that would be helpful for other group proceedings.

The court has previously been told that tea-pickers typically got paid just £25 a week for up to 12 hours in a six-day week and expected to carry up to two stones (12 kilos) of the pickings on their back for over half a mile of rough and hilly ground and slopes. In some “extraordinarily” instances, they were expected to collect up to five stones (30kg) of tea in a day or not get paid.

It is alleged this gave rise to tripping and falling while carrying the pickings baskets and also prolonged the bending, twisting and reaching required in gathering the tea.

And it is claimed in evidence that, had similar working conditions existed in the UK, it was likely the company would have been shut down instantaneously by the Health and Safety Executive.

Legal representatives for the workers say: “It was reasonably foreseeable to a Scottish-based employer that this was a recipe for disaster. And we say that disaster manifested.”

Tea harvested by the workers on James Finlay plantations is stocked by many big brands including Tesco, Sainsbury’s, Starbucks, the Co-op and Bettys & Taylors Group.

James Finlay’s estates in Kericho stretch across almost 25,000 acres – the size of Cardiff – and include a Fair Trade-certified factory and farm. The company started up in 1750 as a Glasgow cotton trader and specialises in growing and processing tea and coffee around the world and is now part of global giant, the Swire Group, which has farms and factories in Kenya, Sri Lanka, Argentina, and China.

In order to examine seven original claimants in the case, a professor of orthopedics from Edinburgh travelled to Kenya where the tea farms operate. The professor found evidence of injury to workers’ spines, ageing their backs by as much as 20 years.

The case was filed in Scotland by a human rights-focused Nairobi law firm in Nairobi, Ronald K Onyango Advocates, and its Scottish agents, Thompsons.

James Finlay has defended its record on health and safety and says it makes a major contribution to the economy of the Kericho region in Kenya, where it has 10,300 hectares (25,500 acres) of tea fields and employs more than 7,000 people.