"Documents Requested 83. In order to progress our clients' claims we request the following documents from the Defendants: a. A list of the farms and districts in Malawi from where the Defendants purchase tobacco; b. A copy of tobacco purchasing contracts between the Defendants and leaf buyers in Malawi relating to the farms being worked on by the Claimants; c. A copy of export documents between the Defendants and leaf buyers in Malawi relating to the unmanufactured tobacco obtained from farms in Malawi. d. Purchase documents related to the amount of tobacco purchased from Malawi in the last tobacco season. e. Policies provided to the leaf buyers in Malawi in relation to farm conditions and farmer working conditions."
"36. Your requests for documents go far beyond what would be reasonable or justified in the context of pre-action disclosure under the Practice Direction – Pre-Action Conduct and Protocols. 37. Given the obvious flaws in the proposed claims against the BAT Entities, it is clear that your requests are a misconceived attempt to obtain wide-ranging information in the vain hope of bolstering those arguments. The BAT Entities therefore declined to provide the documents sought."
"(a) In light of your clients' statement that they 'have traceability down to the farm level and centralised Group-level management of all our tobacco leaf suppliers' please confirm which, if any, of the claimants appearing on the enclosed Electronic Register grew tobacco that was purchased by entities within the BAT Group in the last 6 years. (b) Please provide any documentation in support of your response."
"As explained in Section A above, your claims fail on the law and therefore it would not be reasonable or proportionate to conduct the exercise of locating documents responsive to your requests. We therefore do not agree to your requests."
"Our clients do not have the names of the contract farmers who have grown tobacco purchased by the Alliance One Group within the last six years, which has in turn been purchased by entities within the Imperial Group. Those Imperial Group entities are only in possession of the relevant grower identification numbers relating to the 'entitlement' tobacco purchased by them. To identify the names of the contract farmers corresponding to the grower identification numbers for the 'entitlement' tobacco, our clients would need to approach Alliance One. To identify the names of the contract farmers for the non-entitlement tobacco, our clients would also need to approach Alliance One, but this is likely to be a more challenging task, as our client will not have the corresponding grower identification numbers."
"Paras 1-7 – Summary 1. Includes allegations that Cs have all worked on tobacco farms "from which Ds source leaves" – defined as "the Tobacco Farms". (para 3) 2. Summarises claims against Ds based on Cs having "produced tobacco leaves for Ds on the Tobacco Farms". (para 4) Paras 10-15 – The Parties 3. Explains that the 7,263 Cs at "all material times" grew tobacco "primarily on the Tobacco Farms". (para 10) 4. Describes the BAT Ds and the Imperial Ds, and alleges both made a "substantial proportion" of their profits from sale of products containing tobacco grown on the Tobacco Farms. (paras 11-15) Paras 16-18 – Basis of Pleaded Claims and Reservation 5. Alleges that there is limited information in the public domain, including about the role of the Ds' subsidiaries and how tobacco is transferred intra-group. (para 16) 6. Alleges that the Cs do not have "meaningful visibility over the way in which the tobacco they grow on the Tobacco Farms is subsequently acquired and used by the Ds"
"23. At all material times the Claimants all worked (and in most cases continue to work) on Tobacco Farms controlled by Contract Farmers which supply tobacco leaves to AO [Alliance One] Malawi and/or Limbe Leaf which, in turn, supply those tobacco leaves to the BAT Defendants and the Imperial Defendants. As to this: (a) The significant majority of male Adult Claimants are Tenant Farmers (a small number of male Adult Claimants who worked with Tenant Farmers while they were children have continued working on the same farms with the same Tenant Farmers after reaching the age of 18). (b) The female Adult Claimants are mostly wives of the Tenant Farmers and at all material times worked (and in most cases continue to work) on the Tobacco Farms with the male Adult Claimants. (c) The Child Claimants are all children or other relations of Tenant Farmers and at all material times worked (and in most cases continue to work) on the Tobacco Farms with the Adult Claimants. (d) The dates and duration of the Claimants' work on the Tobacco Farms varies from Claimant to Claimant. All of the Claimants worked on the Tobacco Farms within (at least) three years prior to the date when these proceedings were issued. For the avoidance of doubt, each Claimant's claim covers the entire period during which they worked on a Tobacco Farm growing tobacco which was acquired by the Defendants."
" Defendants' acquisition and use of tobacco leaves grown by the Claimants 49. The BAT Defendants (and/or subsidiaries directly controlled by the BAT Defendants) and the Imperial Defendants (and/or subsidiaries directly controlled by the Imperial Defendants) acquired tobacco leaves grown by the Claimants on the Tobacco Farms and used those tobacco leaves for the manufacture of commercial tobacco products such as cigarettes. Those commercial tobacco products were then sold at a substantial profit by the BAT Defendants and the Imperial Defendants. Further or alternatively, the commercial tobacco products were sold at a substantial profit by one or more subsidiaries controlled by the BAT Defendants or the Imperial Defendants, and the profits thereby generated were remitted to the BAT Defendants (in the case of sales by the BAT Defendants' subsidiaries) and to the Imperial Defendants (in the case of sales by the Imperial Defendants' subsidiaries). 50. At this stage of proceedings, and in light of the matters set out in paragraphs 16 and 17 above, the Claimants are unable to identify exactly which of the Defendants or subsidiaries directly controlled by any of them acquired and subsequently received and used the tobacco leaves (or the traceable products of the tobacco leaves) grown by each individual Claimant. Based on the very limited information made available by the Defendants regarding the respective roles of each of the Defendants and pending disclosure, the Claimants aver that: (a) Each of the Claimants: (i) worked on one or more of the Tobacco Farms from which one or more of the BAT Defendants and/or one or more of the Imperial Defendants (and/or one of more of the subsidiaries directly controlled by the BAT Defendants or the Imperial Defendants) sourced tobacco leaves from AO Malawi and/or Limbe Leaf via the process described in paragraphs 34 to 40 above; and (ii) was personally involved in growing a significant quantity of tobacco leaves which were acquired (or whose traceable proceeds were acquired) by one or more of the BAT Defendants and/or one or more the Imperial Defendants (and/or one of more of the subsidiaries directly controlled by the BAT Defendants or the Imperial Defendants) via that process. (b) Each of the BAT Defendants and each of the Imperial Defendants acquired tobacco leaves (or the traceable proceeds of such tobacco leaves) which were grown by at least a significant number of the Claimants."
"Following full and proper disclosure from the BAT Defendants and the Imperial Defendants and/or third parties, the Claimants will provide further particulars as to which of the BAT Defendants and the Imperial Defendants acquired and subsequently received and used tobacco leaves (or the traceable proceeds of such tobacco leaves) grown by each individual Claimant and when and how such leaves (or their traceable proceeds) were acquired."
"41. As can be seen from the above correspondence, the Claimants made considerable efforts to engage with both sets of Defendants regarding the provision of early disclosure relating to the issue of whether the Defendants purchased tobacco from the farms where the Claimants grew tobacco. Both sets of Defendants refused to investigate these factual matters, which may have been dispositive of some of the claims. 42. Nearly all of the Claimant Farmers know who owns the land on which they grew tobacco and with which Leaf Buyer the landowner enters into a contract to grow tobacco. But the Claimants do not know which tobacco company or companies the Leaf Buyer contracts with to sell their tobacco. This is a step in the supply chain that is outside the Claimants' knowledge and control and is kept outside it (because the Claimants have no means of discovering to whom their tobacco is eventually sold). 43. The Leaf Buyers keep this information very confidential and do not share it. My firm has taken extensive steps to attempt to obtain this information via other sources in the Malawian tobacco industry but have not attempted to obtain it directly from the Leaf Buyers due to the risks of doing so is likely to pose to our clients (as to which see paragraphs 59-61 below). The multinational tobacco companies, including the Defendants, refuse to provide this information, even in the face of litigation. 44. The Claimants therefore do not have documentary evidence that categorially links each individual Claimant to one or more of the Defendants or companies within the Defendants' corporate groups. That is information that is held by the Defendants or their associated companies. 45. It is however clearly critical information on which the onward progress of these claims hinges, and because of the nature of the supply chain as explained above, it is information which the Claimants do not have but the Defendants do. Ordinarily of course information and documents relevant to the claim from the opposing party would be provided at the disclosure stage following close of pleadings. However, given the importance of this information to each individual claim, and hence to the case selection process, the Claimants propose that following provision of certain information regarding each individual Claimant (subject to confidentiality terms as to which see below), the Defendants carry out these investigations at this juncture. The Claimants propose that this exercise can either be carried out unilaterally by the Defendants or with my firm's assistance. 46. We would ask that the Defendants provide documentary evidence in support of any results of these investigations (and my firm would be prepared to enter into an appropriate confidentiality agreement if necessary). Without this information from the Defendants embarking upon the selection of the lead cases makes little sense. Provision by the Defendants of this information at this stage – information which on any view would become disclosable in due course – is the way to ensure sensible and proportionate case management of the claims."
" 3.4 - Power to strike out a statement of case … (2) The court may strike out a statement of case if it appears to the court— (a) that the statement of case discloses no reasonable grounds for bringing or defending the claim; (b) that the statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings;"
"First, it now transpires (contrary to the position in the PoC) that the Claimants and their solicitors do not in fact have any basis for the allegation that any individual Claimant has grown tobacco leaves that have ultimately been purchased by any of the Defendants (or their subsidiaries) (the "
"On the basis of the figures shown in the table above, and assuming that the tobacco acquired by the Imperial Defendants did not originate from the same farms each year, there is a 88% chance that, in respect of any Claimant who grew tobacco which was acquired by Alliance One during each of the Relevant Seasons, at least some of that tobacco was acquired by the Imperial Group. This percentage is calculated by working out, in respect of each growing season, the probability that particular tobacco sold by Alliance One was sold to a MCM other than Imperial, and then multiplying those probabilities together. This calculation shows that where a Claimant has grown tobacco which was acquired by Alliance One during six successive seasons, the probability that none of that tobacco was acquired by the Imperial Group is just 12%. It follows that the probability that the Imperial Group acquired at least some of the tobacco grown by that Claimant is 88%."
"The IEA claim is an abuse of process because it is speculative, in that on the face of it, Mr Adris would appear (at best) not to know whether he can show an IEA or not. The approach seems to have been to leave it to RBS to see if it can produce a copy of the actual executed agreement. If it can, and it is properly executed, the claim will presumably not be pursued … In other words the success of the claim does not depend on any input from the claimant on the issue but only on what (a) the defendant may or may not be able to show and (b) what the court should infer from that."
"It is wrong in principle for parties to half plead the case in the hope or anticipation that that will create sufficient of an issue to give rise to disclosure obligations."
"533. It is necessary to consider, first, whether, when pleading the defence of wilful misconduct by the Owner in March 2015, the Underwriters had actual knowledge of the Owner's wilful misconduct and in particular that the true reason for drifting off Aden was to enable a group of armed men to board the vessel and set fire to it. The nature of the required knowledge was addressed by Mance J in Insurance Corp of the Channel Islands v Royal Hotel Ltd [1998] Ll Rep IR 151 at p. 161: 'Whether a person has knowledge is for lawyers essentially a jury question. The meaning of knowledge has perplexed philosophers from Plato (and no doubt before) to after AJ Ayer, and been said by some to be ultimately unanswerable. But as a matter of law and everyday understanding some points are reasonably clear. First of all, I reject Miss Bucknall's submission that a party must be taken to know whatever he could properly plead. The submission cannot be accepted, even if attention is confined to dishonest conduct which, under the Code of Conduct of the Bar of England and Wales, requires a pleader to have "... before him reasonably credible material which as it stands establishes a prima facie case."
'Underwriters strongly suspected wilful misconduct, believed it, and committed themselves to attempting to prove it.'
'20. The purpose of the requirement that a party should verify the factual contents of his own pleadings was to eliminate as far as possible claims in which the party had no honest belief. The consequence of making a false statement in a document verified by a statement of truth are serious andCPR r 32.14 provides for proceedings for contempt to be brought in such circumstances. It is therefore important at the outset to identify what Part 22 does and does not require. In relation to a pleading the claimant or other relevant party who puts the document forward as a statement of his case is required to certify that he believes the facts alleged are true. He is not required to vouch for the legal consequences which he seeks to attach to these facts. That is a matter for argument and ultimately for the decision of the court. The purpose of Part 22 is simply to exclude factual allegations which to the knowledge of the claimant or other party are untrue or which the party putting forward the pleading to the court is unable to say are true. 21. In the most simple case the requirements ofCPR r 22.1 will, if observed, exclude untruthful or fanciful claims but the notes to Part 22 also indicate that the purpose of the new rule was to discourage the pleading of cases which when settled were unsupported by evidence and which were put forward in the hope that something might turn up on disclosure or at trial … 22. There may however be cases in which the claimant has no personal knowledge of the events which form the factual basis of the claim. Executors or liquidators of companies are obvious examples. They are often required to investigate matters years after they have occurred with a view to establishing a possible claim. In such cases the same rules of conduct will apply to those whom they instruct but a position will often be reached when the available evidence does not point clearly to any single factual possibility. In a case of alleged undue influence for example it may be possible to infer from the relative positions of the donor and donee coupled with the obviously disadvantageous nature of the transaction that some form of oppressive or abusive behaviour has occurred yet the precise form which the undue influence took can only be established, if at all, at the trial. The evidence at the pleading stage from various potential witnesses may disclose a number of possibilities. In such a case it seems to me perfectly legitimate for counsel with sight of that evidence to plead out those possibilities as alternatives. There will be evidence to support each plea. The determination of which, if any, of the possibilities was the probable cause is a matter not for the pleader but for the court at trial.' 536. Counsel for the Bank further submitted that an insurer need not know 'all the particulars or incidents or the available evidence or the means of proof of the relevant circumstances giving rise to the right to avoid.'
"The Imperial Defendants do not suggest that a claimant cannot plead an allegation "unless they are already in possession of 'evidence' which proves that averment/allegation"
"Statements of case must be concise. They must plead only material facts, meaning those necessary for the purpose of formulating a cause of action or defence, and not background facts or evidence. Still less should they contain arguments, reasons or rhetoric. These basic rules were developed long ago and have stood the test of time because they serve the vital purpose of identifying the matters which each party will need to prove by evidence at trial."
"The basic purpose of pleadings is to enable the opposing party to know what case is being made in sufficient detail to enable that party properly to prepare to answer it. To my mind it seems that in recent years there has been a tendency to forget this basic purpose and to seek particularisation even when it is not really required. This is not only costly in itself, but is calculated to lead to delay and to interlocutory battles in which the parties and the court pore over endless pages of pleadings to see whether or not some particular point has or has not been raised or answered, when in truth each party knows perfectly well what case is made by the other and is able properly to prepare to deal with it. Pleadings are not a game to be played at the expense of the litigants, nor an end in themselves, but a means to the end, and that end is to give each party a fair hearing. Each case must of course be looked at in the light of its own subject-matter and circumstances."
"It is a familiar state of affairs that a claimant is ultimately reliant on disclosure from the other side in order to bring his case home, particularly in cases where the nature of the wrong is such that the defendant's activities were covert so that, if the case is good, the defendant is likely to have a substantial amount of material in its hands with no equivalent in the hands of the claimant. Unless the prospects of getting disclosure are "fanciful", the claimant is generally entitled to maintain its case in those circumstances. That is not to say that claimants are entitled to embark on speculative cases in the hope that disclosure will throw up something useful. The claimant must have more than that to start with, but the inability to make a full case without disclosure is not, in my view, a bar to starting the litigation in the first place."
"Provided that there is enough to prevent them falling into the category of the purely speculative, the nature of the wrong or alleged is such that the claimants will or may have little knowledge and evidence of their own at this stage and will need the benefits of pre-trial procedures in order to add to their case. There is nothing wrong with this. It is what disclosure (among other steps) is for."
"Although I accept that the purpose of Part 22 is to deter or discourage claimants from advancing a case which is inherently untrue or wholly speculative (a purpose which will never be wholly achieved), I do not accept that its purpose extends to the possibility of relieving of liability a defendant whose own evidence may establish a cause of action against him. That would not be consistent with the overriding objective of dealing with a case justly."
"… the purpose of the requirement for a statement of belief in the truth of allegations made in a pleading is to prevent allegations being made in the truth of which there is no belief. The purpose is not to prevent a party from pleading an allegation which is supported by evidence but which may only be established at trial. In that sense the required 'belief' need not amount to 'knowledge'."
"The wording ofCPR 3.4 (2)(a) clearly involves an assessment of the pleaded claim without considering the evidence or inferences that might or might not be drawn from undisputed facts." (ii) Accordingly, the court is not required (nor even permitted) to consider whether the pleaded allegations are supported by evidence. See, for example, S v Royal Borough of Kensington & Chelsea (QB/2018/0216) where Stewart J explained that, "the test for striking out proceedings…is one that does not look at the evidence on the claim" and went on to hold that, "the judge was in error and wrong in law in striking out the case under Rule 3.4, because he considered and weighed the evidence in making such a strike out"
"(3) Rule 3.4(2)(b) is broad in scope, and evidence is in principle admissible. The wording of the rule makes clear that the governing principle is that a statement of case must not be 'likely to obstruct the just disposal of the proceedings'. Like all parts of the rules, that phrase must be interpreted and applied in the light of the overriding objective of dealing with a case 'justly and at proportionate cost'. (4) "
"First the court has to determine whether the claimant's conduct was an abuse of process. Secondly, if it was, the court has to exercise its discretion as to whether or not to strike out the claim (see paragraph 64). It is at that second stage that the usual balancing exercise, and in particular considerations of proportionality, becomes relevant." (iii) There is a need for "particular caution" before striking out "first time" litigation. The threshold for striking out at an early stage is very high. In Município De Mariana v BHP Group Plc[2020] EWHC 2930 (TCC) Turner J referred to the need for "particular caution to be exercised before striking out 'first time' litigation"
" Each of the Claimants: (i) worked on one or more of the Tobacco Farms from which one or more of the BAT Defendants and/or one or more of the Imperial Defendants"
"5.1 Abuse of Process 42 Although we were referred to a large number of authorities on abuse of process, the relevant principles can be summarised shortly. The classic summary of abuse of process can be found in the speech of Lord Diplock in Hunter v Chief Constable of West Midlands Police[1982] AC 529 at 536C: "