The recent judgment of the High Court in Josiya & Ors v British American Tobacco PLC & Ors  EWHC 1743 (QB) is the latest in a series of cases in which the English Courts have refused to strike out novel claims against UK companies in respect of alleged unethical conduct in their overseas business operations.
The High Court has refused the applications of British American Tobacco ("BAT") and Imperial Brands ("Imperial") to strike out a group action against them by Malawian tobacco farmers who claim to be part of the defendants' supply chains (or "value chains"). Josiya is the latest of several recent decisions in which the Supreme Court and Court of Appeal have refused to dismiss similar claims alleging responsibility of UK-domiciled companies for harms connected with their overseas business operations, including in respect of the operations of third parties in defendants' broader global value chains.
So far, these decisions have all concerned preliminary challenges to the novel claims (being jurisdiction challenges and/or strike out applications). None of these cases have gone to trial, and the ultimate prospects of success of the novel claims alleged is far from certain. However, a common feature of the judgments in Josiya and other recent decisions is that the Courts have repeatedly emphasised that on such preliminary challenges, the Court should only look behind a claimant's pleadings in limited circumstances, and have held that it is not permissible for a Court to conduct a "mini trial" assessing the strength of the evidence in support of the claims. This approach means it is becoming increasingly difficult for these types of novel claim to be disposed of at an early stage without progressing to a full trial. By allowing these novel claims to proceed, these recent decisions have significant implications for the scope of litigation risk faced by UK-domiciled companies with overseas business operations.