Secondly, what was the location of the constituent elements of the tort? 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. 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. Contains public sector information licensed under the Open Government Licence v3.0. 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. Share. 8. PDF format. The case was initiated in the high court in London. 47. para.26). 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. at pp. This was the reason for the undertakings recorded in the Order. 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. 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). Barbara Dohmann Q.C. Harrods (Buenos Aires) Ltd [1992] Ch.72. 2. 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. 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. Marinus (Rinus) van der Lubbe (Leida, 13 gennaio 1909 – Lipsia, 10 gennaio 1934) è stato un attivista e politico olandese. 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. Mr Kentridge submits that the existence of separate proceedings is wholly irrelevant to the defendant's application in this case. Mrs Lubbe was exposed to asbestos while working for a South African subsidiary company of the UK parent company, Cape plc. Share on. 58. 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. 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. 40. 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 … 38. The latter may mean that the plaintiff in South Africa is able to issue proceedings "as of right" when the defendant's prior acceptance of the jurisdiction is evidenced in that way. Her case was one of 3000 claims. 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. By clicking on this tab, you are expressly stating that you were one of the attorneys appearing in this matter. 20. These matters were determined at Board or a senior level in England as part of company policy and they were implemented by directors and senior personnel in England and elsewhere, including South Africa during regular visits there. 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. 31 Jan 2000. This particular criticism, however, is little more than semantic, and it should not be given undue weight. The Court of Appeal refused Mr Lubbe's arguments and continued the stay, and Mr Lubbe appealed to the House of Lords. 54. 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) [3]. The need for a European Court Ruling therefore does not arise. If the relevant time is when the defendant's Summons is issued (cf.Mohammed v. Bank of Kuwait [1996] 1 W.L.R. The case was initiated in the high court in London. Genealogy for Andries Lubbe (c.1737 - d.) family tree on Geni, ... Western Cape, South Africa. They worked in or lived near the Turin factory similarly operated by the defendant, it is alleged, either directly or through a subsidiary. * Enter a valid Journal (must Read preview. The defendant is a public limited company. Cape Plc was applying to stay the actions on the basis of forum non conveniens, submitting that they were an abuse of process on grounds that intention to launch a multi party action was not disclosed to the court. Creating your profile on CaseMine allows you to build your network with fellow lawyers and prospective clients. sitting as a deputy judge of the High Court ordered a stay, and the plaintiffs now appeal. The defendant company does not carry on business in South Africa and it has no assets there, or none which are liable to attachment or have been attached. 41. Private-International-Law-Notes Prieska and Koegas are in the Northern Cape district. 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. Because the plaintiffs bring the proceedings in this jurisdiction `as of right', the defendant company being incorporated and domiciled here, the defendant has the burden of proving that South Africa is an "available forum which is clearly and distinctly more appropriate than the English forum" for the trial of the action (per Lord Goff at 477E). 13. The judge referred to the authorities which were cited to him under four heads vis. There is said to be "no common law jurisdiction of forum conveniens in South Africa" which we take to mean, for present purposes, that there is no basis for extending the jurisdiction extra-territorially as the English Courts do under R.S.C. The expert evidence suggested a denial of justice would result, exacerbated by the lack of procedures in South Africa to accommodate multi-party actions. Secondly, that duty arose under English law and in England, and the breaches of it for which the defendant is responsible, whether by its directors or senior personnel, occurred for the most part in England, where board meetings were held, policy decisions made and instructions given. The defendant's application was by Summons dated 7 March 1997 claiming :-, 4. Birth of Andries Lubbe, b12c1d4. 20. ), 29. Cape industries plc [1990] 1 Ch.473 and Durham v. T & N plc (C.A. Tag: Lubbe v Cape plc [2000] 1 WLR 1545. Abuse of process and multiplicity of proceedings. 49. Appendix "A" contained five numbered undertakings, the essential one being -. Langebosch (Pty) Ltd v Lubbe and Another (A221/2019) [2019] ZAWCHC 169 (10 December 2019) Download original files. 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. Without it there would be no basis on which South African jurisdiction could be exercised. 42. The plaintiffs allege that their injuries were at least partly caused by negligence of the defendant company itself, through its directors and employees. It seems to me that that is an important factor to take into account when deciding whether the defendants have discharged the burden of persuading the Court that precedence should be given to the overseas jurisdiction from which particular individual plaintiffs come. Tag: Cape v Lubbe. The House of Lords held unanimously that although South Africa was the more appropriate forum for hearing the claim, it was highly likely that legal representation for the claimants would be unavailable. The judge stated the issues as follows :-, 16. The decision was as to the governing law of the torts which were alleged, and the plaintiffs in the present case make entirely different allegations as to the basis on which they say the defendant is liable to them. THE HIGH COURT OF SOUTH AFRICA (WESTERN CAPE DIVISION) ... Western Cape Division _____ C Fortuin. The judge held that the defendant succeeded in doing so, although his conclusion was expressed in the Order in apparently less restrictive terms ("the appropriate forum [is]"). Seeking therefore to give a principled answer to the question whether a foreign jurisdiction can be regarded as available to the plaintiff, when its availability depends on the defendant submitting to it, it seems to me that there could be extreme cases where the defendant is sued "as of right' in a jurisdiction which has no connection whatsoever with the subject-matter of the dispute and where the foreign jurisdiction in question is "clearly and distinctly" the only one which could be regarded as appropriate in the circumstances. Once you create your profile, you will be able to: Claim the judgments where you have appeared by linking them directly to your profile and maintain a record of your body of work. Order 11. and in Western Australia( Barrow and Others v. C.S.R. 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). sitting as a deputy High Court Judge was not persuaded to grant a stay. 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. 10. 43. If modern communications had been available, there would have been less need for personal visits. View all articles and reports associated with Lubbe v Cape plc [2000] UKHL 41. First, what law governs the tort alleged in a particular case? 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. Secondly, it seems to me that the role of the South African companies as operators of the mines and mills is of limited relevance to the allegations made against the defendant. The South African subsidiary had no money left and Cape Plc had no assets in South Africa. Allied to this is the so-called `Rule in Phillips v. Eyre' which in the light of Boys v. Chaplin [1971] A.C. 356 is summarised in Dicey & Morris, The Conflict of Laws 12th ed. As stated above, Miss Dohmann submits that the judge misunderstood the nature of the allegations, confusing them with some form of vicarious responsibility for the acts of agents or subsidiaries in South Africa, and that this led him to the wrong conclusion, that the plaintiffs' claims against the defendants are governed by South African law. The plaintiffs allege that the defendant company "operated and/or had responsibility for, inter alia, asbestos mines and mills in South Africa from which asbestos was mined and milled and a substantial proportion of which asbestos was transported to and used in factories in the United Kingdom which factories the Defendant Company operated and/or had responsibility for" (paragraph 1.2). A ruling that it does apply would involve a departure from the decision of this Court in Re. "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." In our October 2011 update we reported on the High Court decision in Chandler v Cape plc 1.The Court of Appeal has now upheld the High Court decision … 11) and will be accepted as such. 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. If this is correct, then that same right is not a `juridical advantage' of the kind which makes the stage 2 test relevant also. From the point of view of individual plaintiffs, breach, causation and injury all took place in South Africa, and policy decisions made in London or instructions which emanated in London but which took effect in South Africa were remote from them. 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. 1. 33. He 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", referring to a list of connecting factors to England and South Africa respectively which counsel placed before him (paragraph 16). Where as here the claim is land-based, the plaintiffs alleging that they were injured by industrial activities in the area where they lived and worked, then the same territorial principle which enables the defendant to be sued `as of right' in the courts of the country where it is based means that there are strong and often compelling reasons why the action should be heard in the local courts. Cape was joined, who argued there was no jurisdiction to hear the case. This is a substantial question of law, not suitable for determination in these proceedings to have the action stayed. 24. Mr Recorder Stewart Q.C. Lubbe V. Cape PLC . 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. 15. People Projects Discussions Surnames Its subsidiaries mined asbestos in South Africa. Ltd 4 August 1988, Supreme Court), and secondly, how related procedural and jurisdictional issues have been handled by the courts. Lord Bingham made the following remark about the tort issue,[2]. Desc: 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. Biografia Attività come muratore. 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. Menu Home; Journals. Western Cape High Court. 37. 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). We are told, finally, that jurisdiction must exist at the time when the action is instituted by issue of Summons. Where the composite acts which together constitute a tort under English law took place in different jurisdictions, then the Court must identify the substance and decide accordingly what system of law governs the tort: Metall and Rohstoff A.G. v. Donaldson Luftkin & Jenrette Inc [1990] 1 Q.B. Article excerpt. 56. It founds jurisdiction as a matter of discretion in England (Order 11 Rule 1(1)). It is said to have started asbestos production facilities in Italy and in this country and to have marketed the products worldwide. The plaintiffs have suggested that it could be tried as a preliminary issue, but the defendants do not agree, and the judge felt unable to direct a trial of the issue without their assent. As already observed from the Metall und Rohstoff judgment, the law governing the tort depends upon the location of its substantial elements, but this does not mean that the duty of care exists in a particular place. The forum non conveniens application is of course governed by the principles stated in The Spiliada [1987] 1 A.C. 460. 13.2). The reference to a "world wide" tort is taken up in the defendants' skeleton argument where Mr Kentridge submits :-. 22. 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. Abuse of process and multiplicity of proceedings. 63. His conclusions were set out after a lengthy review of the authorities which were cited to him. It can be said, therefore, that due weight is given to the plaintiff's ability to bring proceedings in England`as of right' by the application of what is called stage 1 of the Spiliada test. Investigation of these issues would necessarily involve the evidence and medical examination of each plaintiff and an inquiry into the conditions in which that plaintiff worked or lived and the period for which he did so. It was incorporated in England in 1893 under the name Cape Asbestos Company Limited, principally to mine and process asbestos and sell asbestos-related products. A point was raised in the course of argument by Millett L.J. Legal aid apparently is available to the plaintiffs, and that factor is not relied upon in the present case (judgment para. The case was pleaded as "a straightforward claim in tort for personal injuries against an employee or occupier of premises" (page 6). I should add two further comments, although these were not developed in argument. He said :-. They therefore are not relevant to the issues now raised. In my judgment, a different principle governs the effects of an exclusive jurisdiction clause. for the defendant submits that the judge was right, essentially for the reasons he gave. The alleged duty of care is pleaded in paragraph 5, arising because the defendant "operated or had responsibility for "processes" either directly or through its wholly owned subsidiaries". The English Courts are the correct forum to decide such matters : Du Pont v. Agnew [1987] 23 Lloyd's Rep. 585 at 594/5. RTF format. Wigmans v AMP. The plaintiff was an injured Canadian employee of a subsidiary company of the defendants ; they were "the parent company of a multinational group with extensive experience of resisting asbestos related claims in the Unites States and elsewhere" (judgment page 4). The latter presumably is the situation here. 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. "1 However, as Professor Juenger so ably argued: 50. It is not enough, she submits, that South Africa is "the most natural" forum or that the issues can easily be litigated there. 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. 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. The judge was right to hold that essentially the factual allegations are based in South Africa and that convenience dictates that the trial should be held there. 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. The requirements are (1) a ratio jurisdiction in the form of a cause of action arising (at least in part) within the area of the Court's jurisdiction, and (2) an arrest of the person or attachment of property (no matter how small) ad confirmandum jurisdictionem, or failing that a submission by the defendant to the Court's jurisdiction. Although he gave no express ruling, the judge indicated in the passages referred to above that in his view the defendant's alleged liability is governed by South African law, and if he did so, then in my judgment he misdirected himself. The defendant company is alleged to have "controlled" the operation of the mines and mills in South Africa, meaning that its directors and senior personnel were responsible for the decisions which led to the business being carried on in the way that it was, in terms of policy and instructions to the local workforce rather than the day-to-day implementation of those policies and instructions. These submissions overlap the question whether factual issues may be more conveniently heard in South Africa than in London, and in my judgment it is right to pause in order to consider what weight the governing law factor has in this case. Creasey v Breachwood Motors Ltd [1992] BCC 638. ORDER: Appeal allowed with costs. 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 [1978] A.C. 795 sc. 1 May 1996, unreported). TD Potgieter SC . Posted on 15/10/2019 18/11/2019. 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. 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)). 19. Lubbe (Trichard) (c.1792 - d.) family tree on Geni, with over 200 million profiles of ancestors and living relatives. 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. plc and Tulloch v. Williams (1846) 8D 657 where the point could have been taken, but was not. 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. Chandler v Cape: The new parent company 'duty of care' for health & safety injuries 3 July 2012. 1 May 1996, unreported). 44. 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. Lubbe and ors v Cape Plc HL 2000. Indeed, Miss Dohmann submits that the central allegations relate to the defendant's activities in this country, although its business was carried on directly or through subsidiaries abroad. INTRODUCTION . National Dock Labour Board v Pinn & Wheeler Ltd [1989] BCLC 647. She submits that the question whether the defendant owed a duty of care at this level towards individual workmen centres upon decisions made and activities undertaken in England, and should be governed by English law. 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. They are for injuries allegedly suffered by individual plaintiffs by reason of their physical exposure to asbestos dust in the vicinity of the mines and mills. He did not state any conclusion as regards question (5), but he added this when considering the general issue of appropriate forum :-, 36. 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. 51. [3], The dicta of Lord Bingham were applied for the first time in Chandler v Cape plc. 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). As already explained, the plaintiffs do not allege that the defendant is "liable in law for the breaches of duty by the South African companies" : no form of vicarious liability is relied upon. Also relevant, in my judgment, are the authorities which establish the principles of comparative law (private international law) which determine the proper law of a tort committed either partly or wholly outside the territorial jurisdiction of the English Court ; strictly, what system or systems of municipal law govern the question whether acts committed outside England and Wales give rise to liabilities in tort. The `Liability of Parent Company Cases' likewise are not relevant to the appeal, because Miss Dohmann accepts, indeed she asserts, that the plaintiffs do not allege that the defendants are responsible for the acts of their subsidiary companies in South Africa, whether vicariously or on some other ground which might otherwise be suggested, for example, by submitting that the Courts should `pierce the corporate veil' in the circumstances of this case. Mrs Lubbe was exposed to asbestoswhile working for a South African subsidiary company of the UK parent company, Cape plc. Naturally, therefore, both Miss Dohmann and Mr Kentridge made submissions to us as to whether English or South African law governs the tortious liability which the plaintiffs allege against the defendant. They sued Cape and its subsidiaries in a Texas Court. Ord v Belhaven Pubs Ltd [1998] 2 BCLC 447. The first segment concerns the responsibility of the defendant as a parent company for ensuring the observance of proper standards of health and safety by its overseas subsidiaries. Cape Industries plc was a UK company, head of a group. The present defendants were parties to the second of these, Adams v. Particulars are given of the individuals who acted on behalf of the defendant and whose knowledge should be attributed to it, including knowledge of the alleged risks involved in the asbestos processes. The issues in the present cases fall into two segments. 21. Viewed in this light, the defendant's offer can be seen as contributing towards those ends. 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