We acted for a Unite / Amicus member who was one of three divers injured while working for a Saudi Arabian oil company. The other two divers were represented by other solicitors. They suffered breathing problems and skin disease as a result of chemicals being tipped into the water close to them.
Our client had asked the manager, a Mr Smith, whether it was safe to go into the water while the chemicals were being poured. Mr Smith had said that it was.
A claim against the Saudi Arabian company, which had no place of business in England, met with no response. Prior to the expiry of the three-year limitation period in England, proceedings were issued and served against the manager Mr Smith who lived in England.
An application was then made to the court for leave to serve proceedings on the Saudi Arabian company out of jurisdiction. An order was made. The Saudi Arabian company was served. They then instructed lawyers in London and consented to the case being heard in England.
Liability was denied and the defendant raised the question of limitation saying that the limitation period for personal injury claims in Saudi Arabia was one year. We had received evidence from Saudi Arabian lawyers that, although there was a one-year limitation period, this period did not begin to run until the employment relationship ceased.
All three of the men had continued to be paid in full up until the court proceedings were issued. None of them had received notice of termination of employment. The company had arranged medical examinations for them and had continued to arrange to cover the cost of their travel for medical examinations.
The court ordered that limitation should be dealt with as a preliminary issue. Expert evidence on Saudi Arabian law was obtained on both sides. The claimants’ case was that the cases were not barred under Saudi Arabian labour law, which had the one-year limitation period, because the employment relationship had not ended. In addition the claimants would have been able to bring their cases in the Shari’ah courts where there is no limitation period.
Further, the court had jurisdiction under the Foreign Limitation Periods Act 1984 to disapply the limitation period in cases of undue hardship; the claimants argued that, during the time they were in Saudi Arabia, the employers had deliberately prevented them from seeking advice from a Saudi Arabian lawyer.
The defendants’ case was that the employment relationship had ended immediately after the accident, the fact that they continued to pay the men did not meant there was any contractual relationship, that the Shari’ah court would not hear the case, and that there was no undue hardship because the Claimants would have been able to seek legal advice once they returned to England.
Mr Justice Foskett found against the claimant on the Shari’ah law point, holding that, on the expert evidence, although proceedings could have been brought in the Shari’ah courts, it is likely that they would have been transferred to the Saudi labour courts where the one-year limitation period applied.
However, he found in the claimants favour on the basis that there was a continuing employment relationship and that the limitation period had therefore not begun to run until after proceedings were issued. He went on to say that, even if he were wrong about that, he would have allowed the cases to proceed on the basis of undue hardship.
This case is a good example of how a union’s legal assistance scheme can assist workers who are working abroad for a foreign company with no connection with England.
Directions will now be given for dealing with the issues of liability and damages.
Harley Hopley and Iles -v- Smith, and Khalifa A Algosaibi Diving and Marine Services (2009) EWHC56 (QB).