In an article published in May we examined the application of the Spiliada test in two English decisions earlier in the year. It underlined the importance of robust evidence of (i) the elements of the claim that connect it to a forum here or to an alternative country and (ii) the prospect of securing justice in the alternative country. Although these appear to be distinct stages, the Court of Appeal in 2025 nevertheless described the evaluation of forum conveniens as “juridically a single holistic exercise” (Limbu v Dyson Technology Ltd [2024] EWCA Civ 1564).

A recent decision of the Court of Session - in Scotland, which follows the Spiliada test of forum conveniens - in a group action brought by workers in Kenya against the Scottish parent of the local company further emphasises the importance of such evidence.

The initial group claim in Scotland had been stayed on the grounds that although the Scottish courts could assume jurisdiction, the alternative forum of Kenya provided a more appropriate mechanism, known as the WIBA, for the workers to pursue their claims and as such there was no risk of injustice in staying the Scottish proceedings. However, the stay, known as a sist in Scotland, was subject to this important proviso: “If any group member contends, in due course, that the WIBA provided no, or an inadequate, remedy, the sist can be recalled and the group proceedings resumed.”

The claimant pursuers’ representative in Scotland has now attempted to revive the proceedings by re-opening this aspect and providing additional affidavit evidence on the risk of substantial justice in Kenya. In response, affidavit evidence provided by the defenders maintained that the WIBA would provide effective redress should the pursuers follow its procedures.

Faced with such a divergence of evidence and despite the existence of the current sist, the court was unable to reach a decision on the issue. Its decision of 5 June 2026, Campbell v James Finlay (Kenya) Limited [2026] CSIH 27, therefore ordered the point to be remitted to a single judge to take further evidence and to provide a report, reasoning that “the stark disagreements between the witnesses on fundamental factual matters are such that the court would benefit from oral evidence and cross-examination… We shall remit to one of our number to take evidence and to report to us on the practical operation of the WIBA insofar as relevant to these claims”.

Regardless of the outcome of this additional judicial scrutiny, the principal learning point from the decision is to drive home the critical importance, in ‘accidents abroad’ claims, of detailed evidence when determining the ‘risk of injustice’ aspect of the Spiliada test of forum conveniens. Although these sorts of cases are very fact-specific, the decision could also be a first sign that the focus of dispute is subtly shifting from stage one Spiliada connecting factors to the stage two question of the possibility of securing justice in the alternative forum.