UK Supreme Court refuses to grant Dyson permission to appeal the first jurisdiction challenge post-Brexit

On 6 May 2025, the UK Supreme Court refused an application by members of the Dyson electronics corporate group seeking permission to appeal a Court of Appeal (CA) ruling that claims by factory workers in their Malaysian supply chain can be heard in the English courts. This was the first CPR Part 11 challenge to the jurisdiction of the English courts under the post-Brexit regime, and it established important principles for the application of the common law forum non conveniens test to English-domiciled companies with global supply chains. The CA judgment is already having a noticeable impact on business and human rights (BHR) claims, where jurisdiction challenges are a common defendant tactic to delay or prevent access to justice.    

The claims, collectively titled Dhan Kumar Limbu & Ors v Dyson Technology Limited & Ors, have been brought by Nepali and Bangladeshi migrant workers in tort and unjust enrichment and relate to allegations of modern slavery and other workplace abuses at several Malaysian factories in the Dyson supply chain.  

As a result of the Supreme Court’s decision, the claims will now proceed at first instance: as one of the first to apply the Supreme Court ruling of Lungowe v Vedanta Resources plc [2019] UKSC 20 to a company for harm done by a contracted supplier, rather than a subsidiary.  

Further details about the claims can be found here.

The jurisdiction challenge

As the claims were commenced after the end of the Brexit Transitional Period (31 December 2020), the courts applied the common law doctrine of forum non conveniens to answer the following questions, derived by the House of Lords in Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460:

• Limb 1: Is England or Malaysia the proper place in which to bring the claims?  
• Limb 2: If Malaysia is the proper place, is there a real risk that the Claimants will not obtain substantial justice there?

The Claimants argued that England is the proper place to hear the claims against the two Dyson Defendants incorporated in England (collectively Dyson UK), the third Dyson defendant incorporated in Malaysia being a necessary and proper party to the claims under the CPR gateway. This was strengthened by the fact that Dyson UK were simultaneously pursuing claims in England for defamation regarding a news article reporting the underlying facts of the claim.

The Claimants argued that there were real risks they would be unable to access substantial justice in Malaysia. The impecunious migrant workers would have been unable to pay for appropriately experienced legal representation, whereas Leigh Day were acting on a no-win-no-fee basis in England.  

The Court of Appeal decision

On 13 December 2024, the CA held (overturning a 2023 ruling of the High Court) that the proper place to hear the claims was England, declining to answer Limb 2.

Access to justice relevance to Limb 1  

The CA explained that the two-limb test was a single holistic exercise: reiterating that the proper place to hear the claims was the one in which the case can most suitably be tried in the interests of the parties and for the ends of justice. This required consideration of any access to justice barriers in each available fora, rendering Limb 2 factors relevant to the Limb 1 decision.

This follows the UK Supreme Court commentary at paragraph 88 of Lungowe v Vedanta Resources Plc [2019] UKSC 20, but was unusual in that access to justice factors were considered solely in respect of the satisfaction of Limb 1.  

Domicile and conduct of the “principal protagonists” in mixed claims  

The CA reiterated the importance of the domicile of the parties, noting that Dyson UK could be sued in England “as of right” and this should not lightly be disturbed. While one defendant was incorporated in Malaysia, the CA found that the “principal protagonists” were Dyson UK. Thus, the location of their domicile was the more important factor in determining the proper forum.  

By extension, the CA held that the location of the decision-making and policy-formation by Dyson UK, forming the primary complaint, was of equal or greater influence on the centre of gravity of the claim than the location in which the Claimants suffered harm (Malaysia).

In identifying the “principal protagonist”, the CA considered that: the claims had been originally pursued only against Dyson UK; Dyson UK had formulated the policies forming the basis of the complaint; Dyson UK would coordinate the defence for all three defendants; and Dyson UK runs substantial operations and were not a mere holding company. This appellate court application of the approach in JSC BTA Bank v Granton Trade Limited [2010] EWHC 2577 (Comm) to mixed service-in and service-out claims will prevent international corporations in BHR claims from relying on the secondary culpability of international subsidiaries to challenge jurisdiction. 

Location of legal counsel and documents

The CA found that the defence would be coordinated and conducted from England by English General Counsel and officers of Dyson UK, and held that this was relevant to determining Limb 1. The CA also found that most of the documents required to evidence the claim would be in England, as they related to the decision making of Dyson UK and much of the harm in Malaysia would have been undocumented due to the nature of the allegations.  

Defendant funding undertakings  

The Defendants had given a series of undertakings to fund aspects of the claims in Malaysia, to overcome barriers to substantial justice that would face the Claimants there: such as certain disbursements unable to be funded by the Claimants, Malaysian NGOs or Malaysian lawyers.

The CA held that there were six serious flaws in this “unprecedented” approach. Allowing one party to fund claims against itself was a conflict of interest, necessitating waiver of privilege to request funds and creating potential tactical advantages where funding disputes could delay the claims. In the event of non-compliance, the Claimants could not be expected to fund a contested application in England to lift the stay of their English claims, and the Defendants could not be expected to apply the undertakings flexibly to enable the Malaysian claims against them. Moreover, the Malaysian courts were not the recipient of these undertakings, and the English courts could not be required to police the funding of foreign claims. Finally, the undertakings were limited, as the scope of a litigation necessarily evolves and there was no provision for funding unforeseen claimant costs. The CA found that, in the absence of such undertakings, neither the Claimants nor Malaysian civil society could fund the Malaysian claims, which pointed “overwhelmingly” towards the claims being heard in England under both Limbs.  

The CA’s decision is particularly significant for its clear rejection of the Defendants’ undertakings as a viable substitute for access to justice. In the wake of the High Court’s decision that such undertakings could mitigate jurisdictional concerns, defendants in BHR claims were encouraged to adopt similar tactics to avoid proceedings in the English courts. However, the CA’s comprehensive rejection of the undertakings is likely to deter defendants from seeking to rely on similar undertakings as a tactical means of resisting jurisdiction.  Indeed, the CA’s reasoning has already influenced subsequent cases, with the High Court in Da Silva and others v Brazil Iron Limited [2025] EWHC 606 (KB) at [127] refusing to accept undertakings as a basis to decline jurisdiction “essentially for the reasons identified by Popplewell LJ in Dyson”.  

Equality of arms and standard of legal representation  

The CA found that the high standard of legal service that the Claimants had obtained on a contingency fee basis in England was unlikely to be available to them in Malaysia. While this was not a Limb 2 factor (substantial justice not requiring optimum “Rolls Royce” legal representation), it was relevant to Limb 1 where it created inequality of arms between the parties.  

This aspect of the CA’s reasoning is particularly significant for BHR claims, which frequently involve stark power imbalances between multinational corporations with significant resources and vulnerable, economically marginalised claimants. By affirming that ‘equality of arms’ is a relevant consideration under Limb 1, the CA has made clear that where claimants have access in England to a more experienced and well-resourced legal team, this will weigh in favour of England as the proper forum.  

Related English claims and changes of fact between judgments

The CA reiterated that a risk of irreconcilable judgments arising from the pursuit of the claims in one fora is a very important Limb 1 factor. Accordingly, the CA held that the pursuit of the related English defamation proceedings by Dyson UK was a powerful factor in favour of England. The claims would be jointly case managed by the English courts to avoid any risk of irreconcilable judgments, but this would not be possible if the instant claims were heard in Malaysia.  

This factor was relevant to establishing whether the High Court judge had erred: an enquiry conducted on the basis of the facts before the judge at first instance. However, as Dyson UK had withdrawn their claim prior to the appeal, this factor was not relevant to the subsequent re-evaluation of Limb 1 by the CA.  

Attempted Supreme Court appeal  

The Defendants sought permission to appeal, arguing that the CA’s judgment had re-introduced the pre-Brexit regime by focusing on the domicile of Dyson UK. They also argued that the CA had improperly considered Limb 2 factors in their Limb 1 analysis, and that the funding undertakings were not improper.  

Finally, they argued that the CA’s focus on the UK Defendants’ domicile and their UK in-house counsel risked business uncertainty for multinational groups with English-domiciled entities. They argued that this ignored the context of the Defendants’ “truly international” supply chain, and risked disincentivising recruitment of English personnel to global corporate roles.  

However, in refusing to grant permission to appeal, the Supreme Court held that the application did not raise a point of law of general public importance. This means that the groundbreaking judgment of the CA stands.

Implications for BHR claims

The judgment significantly strengthens the position of individuals affected by business-related human rights abuses bringing claims before the courts of England and Wales. The CA made clear that companies cannot rely on the global nature of their operations to avoid proceedings in England while conducting substantial global functions from this jurisdiction. Further, the inherent imbalance of power between multinational corporations and those affected by their supply chain will now weigh against successful jurisdiction challenges. Finally, the CA’s rejection of the Defendants’ undertakings mean that defendants cannot seek to in effect choose the forum by offering undertakings designed to make a foreign jurisdiction appear more favourable. This groundbreaking judgment has therefore altered the viability of jurisdiction challenges by English-domiciled defendants as a tactic to stifle or delay accountability for the global impacts of their supply chains.