Posted on 15/10/2019 18/11/2019. The plaintiff's appeal was dismissed, by a Court of which I was a member. 23. Miss Dohmann's submission can be summarised, I hope accurately, under three heads. This is a substantial question of law, not suitable for determination in these proceedings to have the action stayed. The defendant's application was by Summons dated 7 March 1997 claiming :-, 4. Judgment was still entered against Cape for breach o… (1993) as follows :-, 28. But the effect of treating the foreign jurisdiction as available to the plaintiff in these circumstances is to give the defendant a choice of jurisdiction, if he is sued in England. Biografia Attività come muratore. Share. Without it there would be no basis on which South African jurisdiction could be exercised. They shipped it to Texas, where a marketing subsidiary, NAAC, supplied the asbestos to another company in Texas. sitting as a deputy judge of the High Court ordered a stay, and the plaintiffs now appeal. In this context, the line of cases, which was first established with Lubbe v. Cape and then further developed with Chandler v. Cape, offers an alternative to either piercing the corporate veil or establishing a cause of action based on a combination of tort and customary international law. But the allegations which the plaintiffs make in this action, and likewise the plaintiffs in the Italian action, are directed to what the defendants did here. The Court has a discretionary power to refuse to entertain the proceedings, which may be stayed in accordance with Spiliada principles. The judge in my view did underestimate the extent to which factual issues arise here in this country : he said that there were none, apart from the presence of the defendant company, when clearly there are some. "1 However, as Professor Juenger so ably argued: Whether the Court's jurisdiction will become effective depends upon the willingness of the defendant to submit to it : the antithesis of jurisdiction asserted "as of right". If that is a relevant consideration (I do not say that it is) then there is nothing inherently wrong or unreasonable in bringing proceedings in England against an English defendant in respect of alleged negligence committed for the most part in this country, even though having its injurious effects abroad. The second segment of the cases involves the personal injury issues relevant to each individual: diagnosis, prognosis, causation (including the contribution made to a plaintiff's condition by any sources of contamination for which the defendant was not responsible) and special damage. This undertaking enables the defendants to contend that the South African courts are "available" to the plaintiffs for the purposes of the Spiliada principles. 5 Full PDFs related to this paper. As a general rule a British based employer intending to employ overseas nationals in their own country will set up, or already own, a locally incorporated subsidiary which will be the employer. On a side issue, however, matters of public interest and policy were not relevant to determining which forum was best, and only private interests would be taken into account. and in Western Australia( Barrow and Others v. C.S.R. Roberts Ltd (1966) P.I.Q.R. Both Ngcobo v. Thor Chemical Holdings Ltd and Durham v. T & N plc, however, should be referred to in greater detail. First, what law governs the tort alleged in a particular case?  He alleged that the parent, Cape Plc, owed a direct duty of care in tort to him as a worker in the company group. Posted on 15/10/2019 18/11/2019. Creating your profile on CaseMine allows you to build your network with fellow lawyers and prospective clients. para.26). Lubbe and Others v Cape Industries plc  1 WLR 1545 The Asbestos Cases, The Forum Conveniens Cases, The Liability of Parent Company Cases and The question of Legal Aid (ref. 24. Appeal from – Lubbe (Suing As Administrator Of The Estate Of Rachel Jacoba Lubbe) and 4 Others v Cape plc and Related Appeals HL 22-Jun-2000 South African asbestosis victims suing in England submitted that to stay their proceedings in favour of the South African forum would violate their article 6 rights. People Projects Discussions Surnames 59. Cape Industries plc was a UK company, head of a group. 3. None of these comments, however, comes close to providing grounds for differing from the judge's exercise of discretion, so far as the convenience factor is concerned. In these circumstance, it would be wrong in my view to make any assumption as to what is or is likely to be held to be the governing law of this transaction. But there is a strong countervailing factor also. This is contained in paragraph 19, which I have quoted above. He added "In this way, proper regard is paid to the fact that jurisdiction has been founded as of right," citing Lord Salmon's speech in MacShannon  A.C. 795 sc. The Spiliada judgment refers expressly to "the law governing the relevant transaction" as one of the factors determining whether the alternative foreign forum is "clearly and distinctly more appropriate" than England (pp. Creasey v Breachwood Motors Ltd  BCC 638. 41. 55. 46. THE HIGH COURT OF SOUTH AFRICA (WESTERN CAPE DIVISION) ... Western Cape Division _____ C Fortuin. Putting aside these technical objections, it can be said that the defendant's offer only becomes relevant if the Court finds that the forum in which he indicates his willingness to be sued is "clearly and distinctly" more appropriate for the hearing of the action, "in the interests of both parties and the ends of justice". In short, Miss Dohmann submits that the defendant owed the plaintiffs a duty of care in respect of their activities which took place largely in England, whilst Mr Kentridge relies rather upon the alleged consequences of breaches of the duty, which occurred in South Africa, and on the nature of the individual claims. It becomes almost a case of forum shopping in reverse, and it was the English Court's reluctance to allow plaintiffs to choose an inappropriate jurisdiction when more than one forum was available to them which led to the disinterested approach based on doing justice to both parties which underlies the Spiliada judgment. Adams v Cape Industries plc. He did not state any conclusion as regards question (5), but he added this when considering the general issue of appropriate forum :-, 36. Lubbe v Cape Plc  UKHL 41 is a conflict of laws case, which is also highly significant for the question of lifting the corporate veil in relation to tort victims. Lubbe v Cape  4 All ER 268. and Related Appeals (2000), https://en.wikipedia.org/w/index.php?title=Lubbe_v_Cape_plc&oldid=992416095, United Kingdom corporate personality case law, Creative Commons Attribution-ShareAlike License, Lord Bingham of Cornhill, Lord Steyn, Lord Hoffmann, Lord Hope of Craighead and Lord Hobhouse of Woodborough, This page was last edited on 5 December 2020, at 04:11. 25. The judge made the following Order dated 22 January 1998 :-, 5. 20. Furthermore, it is an issue of law which can be decided in either South Africa or England, although prima facie the allegation of a common law duty of care owed by an English defendant, albeit to a class of persons situated overseas, should more appropriately be decided by the English Courts. NOTES. Cape was joined, who argued there was no jurisdiction to hear the case. 40. The issues in the present cases fall into two segments. In Lubbe v Cape PLC (2000, House of Lords), Cape PLC was again alleged to know that exposure to asbestos presented serious health risks for group employees and to … We are told, finally, that jurisdiction must exist at the time when the action is instituted by issue of Summons. If the relevant time is when the defendant's Summons is issued (cf.Mohammed v. Bank of Kuwait  1 W.L.R. 21. 60. The same allegations are made as in the present action, and the fact that the Italian action is pending is a reason, the plaintiffs submit, why the present actions should not be stayed. At this point, it seems to me, the international nature of the defendant company's alleged interests becomes relevant. 31. Miss Dohmann emphasises that the negligence alleged against the defendant company, which acted through its directors and senior employees, consists of instructions and advice which they gave, or failed to give, to their South African employees and to the South African subsidiaries who operated the mines and mills, in the course of carrying on business internationally, there and elsewhere. Resolution of this issue will be likely to involve an inquiry into what part the defendant played in controlling the operations of the group, what its directors and employees knew or ought to have known, what action was taken and not taken, whether the defendant owed a duty of care to employees of group companies overseas and whether, if so, that duty was broken. LORD JUSTICE EVANS: The issue raised by this appeal is whether an action brought by South African plaintiffs against the defendant company, which is incorporated and domiciled in England, should be stayed on grounds of forum non conveniens, in favour of proceedings which the defendant says the plaintiffs could commence against it in South Africa. The judge stated the issues as follows :-, 16. The need for a European Court Ruling therefore does not arise. Clearly not, at the time when the plaintiff brings proceedings in England, unless the defendant has already indicated his willingness to be sued there, whether in reply to a letter before action or for some other reason. which was not relied upon before the judge and which introduces a factor which was not present or taken into account in Spiliada. Please log in or sign up for a free trial to access this feature. 10. 58. The present defendants were parties to the second of these, Adams v. 14. The facts in Durham v. T & N plc are to some extent parallel with those in the present case. The judgment of Lord Stynn includes the following passage :-. The defendant company is not amenable to the jurisdiction of the South African Courts, save with its consent. The judge referred to the need for the defendant company to submit to the jurisdiction of the South African court, before that forum could become `available' to the plaintiffs, but only as a "potential difficulty", equivalent to different rules as to discovery, etc, which was removed by the undertakings offered by the defendant and subject to which the Order staying the proceedings was made (see page 49). Share on. 1483), then the requirement was not satisfied in the present case : the undertakings were suggested or offered subsequently, when the Summons was heard. The judge in the present case rightly regarded this as an important decision, and of some assistance to the plaintiffs, but the facts can be distinguished and for present purposes I do not give it any significant weight. 19. Wigmans v AMP. A fortiori where it is alleged that the defendants were situated in England and ought reasonably to have taken account of scientific knowledge that was available to them here. The Court of Appeal has upheld a decision of the High Court which found that a parent company owed a direct duty of care to an employee of one of its subsidiaries, in Chandler v Cape  EWCA (Civ) 525 . Harrods (Buenos Aires) Ltd  Ch.72. First, the issue whether a duty of care was owed by the defendant, in England, may be governed by English law, even if the other factors making up the alleged tort of negligence are governed by South African law : the kind of hybrid situation envisaged by Dicey and Morris' Rule 203(2). The submissions demonstrate that there is much room for argument as to whether on the alleged facts the defendant company owed a duty of care to individuals who lived in the vicinity of the mines and mills in South Africa, whether under English or South African law, and as to which law applies to the alleged tort or, possibly, to that issue. Those principles, based primarily on Scottish authorities, give priority to "the interests of both parties and the ends of justice" over the plaintiff's right to choose a forum and, I would add, over the right to choose which the Courts allow to the defendant if the availability of an alternative foreign forum depends upon the defendant's willingness to submit to that jurisdiction. The fundamental principle established in Salomon in relation to single companies was applied in the context of a group of companies by the Court of Appeal in the case under discussion in this paper, Adams v Cape Industries plc (1990) . I should add two further comments, although these were not developed in argument. Lubbe V. Cape PLC . They made a claim. The judge referred comparatively briefly to factors such as the availability of witnesses and documents, the convenience of the parties and their representatives as well as witnesses and suggested differences between South African and English court procedures. Further facts are alleged in paragraph 2, including, with reference to the three named sites, "the Defendant company operated and/or had responsibility" for them either itself or through wholly owned subsidiaries (paragraphs 2.7 and 2.8). It is not the extreme case, in my judgment, where possibly the defendant's choice of jurisdiction should be allowed to prevail. We were given an agreed statement of South African law as to the jurisdiction of the High Court of South Africa in an action in tort (delict) brought by a resident (incola) against a non-resident (peregrinus). Apart from the defendant's incorporation and domicile in England, "none of the legal or factual issues in this case are connected with England" (skeleton argument para.24.1), and for the same reasons "English law is likely to be the law of the alleged tort or at least a substantial element" (ibid. The difference is important, because the alleged breaches of an independent duty of care owed by the defendant took place in England rather than in South Africa. Following the discovery of blue asbestos near Prieska in South Africa, 12. The South African subsidiary had no money left and Cape Plc had no assets in South Africa. Judge of the High Court. There is no distinction, he submits, between an undertaking which precedes the issue of South African proceedings and a previous contractual agreement to the jurisdiction of a foreign court. The alleged torts were committed in South Africa. Reference is also made to an action commenced by Writ issued on 3 October 1997 against the defendant by four Italian plaintiffs claiming damages for personal injury. 11. Birth of Barend Frederik Lubbe, b12c1d3. Much of the evidence material to this inquiry would, in the ordinary way, be documentary and much of it would be found in the offices of the parent company, including minutes of meetings, reports by directors and employees on visits overseas and correspondence. The alleged breaches include negligently allowing the plaintiffs to be exposed to asbestos dust and fibres (paragraph 12). He took no account of the fact that a South African forum was and is unavailable to the plaintiffs until the defendant offered undertakings during the hearing before him, and it remains conditional upon them. Cape industries plc  1 Ch.473 and Durham v. T & N plc (C.A. Get 1 point on providing a valid sentiment to this But when there is no prior agreement, the plaintiff cannot make any such claim. Interact directly with CaseMine users looking for advocates in your area of specialization. Cases in bold have further reading - click to view related articles.. Adams v Cape Industries plc  Ch 433; Caparo Industries plc v Dickman  UKHL 2; Lubbe v Cape plc  UKHL 41; Salomon v A Salomon & Co Ltd  UKHL 1 The Asbestos cases are relevant because they show, first, how claims for personal injuries caused by exposure to asbestos dust have been handled by the English Courts (Smith v. Asbestos Industries Ltd  3 All E.R. APPEARANCES. The instructions and advice, it is alleged, showed a careless disregard for the foreseeable risks of injury to those who were closely affected by the asbestos operations in South Africa, taking account of the knowledge which they had or ought to have had of the health risks involved. Prieska, Koegas and Penge are the names of asbestos mines and mills in South Africa where local deposits of asbestos were exploited from the late 19th century until 1979, when the defendants ceased to have any connection with them. * Enter a valid Journal (must A point was raised in the course of argument by Millett L.J. 22. 477E and 478A). I mention this because the judge's passing reference to the defendant's willingness to submit to South African jurisdiction was in the context of considering whether stage 2 arises in this case (judgment para.20). This particular criticism, however, is little more than semantic, and it should not be given undue weight. Mrs Lubbe was exposed to asbestos while working for a South African subsidiary company of the UK parent company, Cape plc. Read preview. After her death, Mr Lubbe continued the court action as her personal representative and the administrator of her estate. TD Potgieter SC . In Lubbe v Cape plc Lord Bingham held that the question of proving a duty of care being owed between a parent company and the tort victims of a subsidiary would be answered merely according to standard principles of negligence law: generally whether harm … Abuse of process and multiplicity of proceedings. 6. In my judgment, a different principle governs the effects of an exclusive jurisdiction clause. 18. and Margereson v. J.W. 39. The South African courts are an "available forum," for the plaintiffs, because the defendant is willing to submit to their jurisdiction, and the fact that such submission is necessary has not given rise to a similar objection in any reported case, in particular Connolly v. R.T.Z. ATTORNEY(S) MISS B DOHMANN QC and MR G READ (Instructed by Messrs Leigh Day & Co., London EC1M 4LB) appeared on behalf of the Appellants. SCHALK WILLEM BURGER LUBBE (SUING AS ADMINISTRATOR OF THE ESTATE OF RACHEL JACOBA LUBBE) AND 4 OTHERS (APPELLANTS) AND CAPE PLC (RESPONDENT) AND RELATED APPEALS ON 20 JULY 2000 LORD BINGHAM OF CORNHILL My Lords, The central issue between the plaintiffs and the defendant in these interlocutory appeals is whether proceedings brought … He appears to have placed some reliance on the fact that a South African judge could more readily carry out a site inspection, which I would have discounted, because (1) the mines are now closed and the sites "rehabilitated", (2) an English judge could, if necessary, travel to South Africa for the same purpose, albeit at much greater expense, and (3) the trial judge's findings of fact will depend upon the evidence that is put before him in the court-room, wherever that may be. There is some force, I think, in Miss Dohmann's submission that the question which the judge asked himself was not the correct one, given that the plaintiff can invoke the English Court's jurisdiction as of right : it should be, is South Africa nevertheless shown "distinctly and clearly" to be the more appropriate forum? The cases linked on your profile facilitate Casemine's artificial intelligence engine in recommending you to potential clients who might be interested in availing your services for similar matters. ), 29. Where business is carried on in this country, the fact that statutory regulations were not breached does not mean that the defendant was not negligent, although if the regulations take account of contemporary knowledge then it is clear evidence that reasonable standards were achieved : Budden v BP & Shell (C.A. 1. Ltd 4 August 1988, Supreme Court), and secondly, how related procedural and jurisdictional issues have been handled by the courts. The expert evidence suggested a denial of justice would result, exacerbated by the lack of procedures in South Africa to accommodate multi-party actions. A number of individuals were suffering from specific illnesses following years of working for Cape. In this case it was alleged, and postulated by the House of Lords, that in principle it is possible to show that a parent company o WikiMili The Free Encyclopedia Lubbe v Cape plc Birth of Andries Lubbe, b12c1d4. "In short, the Ngcobo Plaintiffs alleged that the defendants had developed an unsafe plant and system of work in England, exported it to South Africa and thereafter commissioned it and operated it knowing it to be hazardous to the workmen employed there." The Court of Appeal decision in Chandler v Cape has extended the situations in which a parent company can be held liable for group operations, by establishing a parent company duty of care to its subsidiary's employees. Lubbe & Ors v Cape Plc  EWCA Civ 1351  CLC 1559. 1766 November 2, 1766. Even making the assumption that the defendant company rather than the subsidiary should be regarded as the plaintiff's employer and occupier of the factory, nevertheless the law of Quebec was the governing law of the alleged tort and the action was precluded by the provisions of Quebec law. 52. The House of Lords' decision in Boys v. Chaplin illustrates the application of sub-rule (2) and is consistent with the passage from the judgment in Red Sea Inc. Company Ltd. v. Badges S.A. which I have quoted above. 56. Having defined the issues as already stated above, he then held that questions (1) to (4) "are governed by South African law and the answer to them has its closest and most natural connection with South Africa" (para. 48. First, the plaintiffs do not allege that the defendant is liable for breaches of duty by the South African companies (the judge's issue (5)). Case Information. The Italian action cannot be stayed, because the defendant company is domiciled here and so is rightly sued by Italian plaintiffs in the English court, under the Brussels Convention Article 2. The question is, whether the courts of another country can be said to offer an "available forum" to a plaintiff who cannot bring proceedings there, without the defendant's consent. In this case it was alleged, and postulated by the House of Lords, that in principle it is possible to show that a parent company owes a direct duty of care in tort to anybody injured by a subsidiary company in a group. Article excerpt. Prieska ceased operations and the area was "rehabilitated" in 1994. Its subsidiaries mined asbestos in South Africa. Tag: Cape v Lubbe. Lubbe v Cape Plc UKHL 41 is a conflict of laws case, which is also highly significant for the question of lifting the corporate veil in relation to tort victims.