56. 9 October 1995, unreported) and Adams v. Cape industries plc [1990] 1 Ch.473 and Durham v. T & N plc (C.A. 98.3k Followers, 808 Following, 185 Posts - See Instagram photos and videos from Luna Lubbe (@lunatic_xoxo_) Get 2 points on providing a valid reason for the above 16). 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. 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. 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 plaintiffs bring these proceedings "as of right" meaning that they invoke the territorial jurisdiction of the English Court over a defendant who is resident (incorporated and domiciled) here. Even in such a case the plaintiff might seek, not unreasonably, to obtain a judgment in England which could more readily or more effectively be enforced against the defendant or his assets, and so I will say no more than that such a case could perhaps exist. He then considered English and other authorities which demonstrated a "more neutral position" (p.477A), and proceeded to state English law in terms of the "clearly or distinctly more appropriate" test. 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. This was of no concern to individuals in South Africa or to others who may or may not have suffered similarly in other countries. Secondly, what was the location of the constituent elements of the tort? It is not the extreme case, in my judgment, where possibly the defendant's choice of jurisdiction should be allowed to prevail. The judge stated the issues as follows :-, 16. 21. If the relevant time is when the defendant's Summons is issued (cf.Mohammed v. Bank of Kuwait [1996] 1 W.L.R. CITATION CODES. This particular criticism, however, is little more than semantic, and it should not be given undue weight. 46. 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 [1971] 3 All E.R. The judge made the following Order dated 22 January 1998 :-, 5. We are told, finally, that jurisdiction must exist at the time when the action is instituted by issue of Summons. 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 … 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. Michel Kallipetis Q.C. The case was pleaded as "a straightforward claim in tort for personal injuries against an employee or occupier of premises" (page 6). The forum non conveniens application is of course governed by the principles stated in The Spiliada [1987] 1 A.C. 460. 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. The judge failed to give any weight to the fact that the negligence alleged against the defendant company is distinct from any allegations which might be made against the person or subsidiaries responsible for running their South African businesses from time to time. 63. The facts in Durham v. T & N plc are to some extent parallel with those in the present case. 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. 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. 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. It is an open issue, and at best for the defendant a neutral factor in the circumstances of this case. The most that can be said is that one system of law rather than another will govern the alleged liability of the tortfeasor towards the injured claimant, wherever they may be situated, and even this is subject to the possibility that, under English law, an individual issue may be determined by a different system from that which otherwise governs the tort. The plaintiffs in Ngcobo were admittedly exposed to hazardous and unsafe quantities of mercury, mercury vapour and mercury components in the course of their employment in South Africa by a South African company whom they could not sue, by reason of the provisions of the South African Workmans Compensation Act 1941. 41. Cape Industries plc was a UK company, head of a group. The Court has a discretionary power to refuse to entertain the proceedings, which may be stayed in accordance with Spiliada principles. The question whether a foreign forum is clearly and distinctly more appropriate for the trial of the action cannot be answered without first identifying the subject-matter of the action - what the trial will be about. Tag: Lubbe v Cape plc [2000] 1 WLR 1545. 39. RTF format. 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. 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. 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. 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. The fact that this point was not taken in the cases cited by Mr Kentridge, including Sarrio v. Kuwait Investment Authority [1996] 1 Ll.R. 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. 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 Court of Appeal refused Mr Lubbe's arguments and continued the stay, and Mr Lubbe appealed to the House of Lords. 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. 44. They sued Cape and its subsidiaries in a Texas Court. 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. 35. 31 Jan 2000. It is unnecessary in my judgment to refer to any of the forum conveniens cases except Spiliada and also a more recent Privy Council decision in Red Sea Inc Company Ltd v. Bouygues S.A. [1995] 1 A.C. 1990, on appeal from the Supreme Court of Hong Kong. at pp. Connelly v. RTZ Corp. plc (House of Lords). The question whether the defendant owed the duty of care alleged by the plaintiffs is likewise governed by South African law. There are factual connections with England. 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]"). Get 1 point on providing a valid sentiment to this counsel for the appellants submits alternatively that the stay is contrary to the Brussels Convention 1968 (Civil Jurisdiction and Judgments Act 1982) and that the matter should be remitted to the European Court of Justice for its ruling on whether the Convention applies. The plaintiffs suffered their alleged injuries in South Africa in consequence, they say, of physical conditions there. 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. 47. 204 (C.A.) Posted on 15/10/2019 18/11/2019. The present defendants were parties to the second of these, Adams v. Cape Industries plc, being joined as the parent company of subsidiaries who were defendants in an action brought before the U.S. District Court of Texas. 49. 21. Mr Kentridge submits that the existence of separate proceedings is wholly irrelevant to the defendant's application in this case. 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. Moreover, I would accept Miss Dohmann's submission that the judge's formulation of issue (5) was incorrect. 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. "1 However, as Professor Juenger so ably argued: plc and Tulloch v. Williams (1846) 8D 657 where the point could have been taken, but was not. It is not enough, she submits, that South Africa is "the most natural" forum or that the issues can easily be litigated there. 57. Cape was joined, who argued there was no jurisdiction to hear the case. Lubbe and ors v Cape Plc HL 2000. 59. Her case was one of 3000 claims. Chandler v Cape plc. In case of any confusion, feel free to reach out to us.Leave your message here. 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. 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". The case was initiated in the high court in London. Thirdly, she relies on the "available forum" point which was not taken before the judge. sitting as a deputy High Court Judge was not persuaded to grant a stay. The English Courts are the correct forum to decide such matters : Du Pont v. Agnew [1987] 23 Lloyd's Rep. 585 at 594/5. READ PAPER. The undertaking was first offered during the hearing before the judge and therefore came after the defendant's summons was issued ; a matter of timing which may be relevant to the question whether it should be taken into account. Again, the judge's summary can be quoted here :-. 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. MISS B DOHMANN QC and MR G READ (Instructed by Messrs Leigh Day & Co., London EC1M 4LB) appeared on behalf of the Appellants, MR S KENTRIDGE QC, MR B DOCTOR and MR COLEMAN (Instructed by Messrs Davies Arnold Cooper, London EC4Y 8DD) appeared on behalf of the Respondents. Prieska and Koegas are in the Northern Cape district. 7. Lubbe v Cape [2000] 4 All ER 268. para.26). Legal aid apparently is available to the plaintiffs, and that factor is not relied upon in the present case (judgment para. This was the reason for the undertakings recorded in the Order. Without it there would be no basis on which South African jurisdiction could be exercised. 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. 40. But when there is no prior agreement, the plaintiff cannot make any such claim. The reference to a "world wide" tort is taken up in the defendants' skeleton argument where Mr Kentridge submits :-. Marinus (Rinus) van der Lubbe (Leida, 13 gennaio 1909 – Lipsia, 10 gennaio 1934) è stato un attivista e politico olandese. Ltd 4 August 1988, Supreme Court), and secondly, how related procedural and jurisdictional issues have been handled by the courts. 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. Lubbe & Ors v Cape Plc [1998] EWCA Civ 1351 [1998] CLC 1559. 11) and will be accepted as such. NOTES. Mrs Lubbe was exposed to asbestoswhile working for a South African subsidiary company of the UK parent company, Cape plc. Roberts Ltd (1966) P.I.Q.R. 391 and see Distillers Co. Ltd v. Thompson [1971] AC 458 :-, 27. 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. A jurisdiction clause, he submits, which, although not a submission `in the face of' the foreign court, nevertheless is evidence of a submission to it (supplementary skeleton para. 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. National Dock Labour Board v Pinn & Wheeler Ltd [1989] BCLC 647. Her case was one of 3000 claims. Judge of the High Court. Following the discovery of blue asbestos near Prieska in South Africa, 12. This undertaking enables the defendants to contend that the South African courts are "available" to the plaintiffs for the purposes of the Spiliada principles. Tag: Cape v Lubbe. Lubbe v Cape Industries plc 1 WLR 1545 Claimants were South African labourers employed by the Cape subsidiary mining asbestos rock that was being shipped to Cape’s USA subsidiaries for processing/manufacturing. 650, should not deter this Court, in my judgment, from applying the principles correctly now. 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. 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 issues in the present cases fall into two segments. Direct link. Williams v Natural Life Health Foods Ltd [1998] 2 All ER 577. change. Lubbe v Cape Plc [2000] 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. 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. 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. Creating a unique profile web page containing interviews, posts, articles, as well as the cases you have appeared in, greatly enhances your digital presence on search engines such Google and Bing, resulting in increased client interest. and Margereson v. J.W. 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. Abuse of process and multiplicity of proceedings. Adams v Cape Industries plc. Lubbe v Cape plc From Wikipedia the free encyclopedia Lubbe v Cape Plc 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. The need for a European Court Ruling therefore does not arise. 13.2). * Enter a valid Journal (must The suggestion that the defendant formulated its policy in England takes the matter no further ; the plaintiffs were not injured by the formulation of policy, but by exposure to asbestos dust in South Africa. Please log in or sign up for a free trial to access this feature. The plaintiffs allege that their injuries were at least partly caused by negligence of the defendant company itself, through its directors and employees. But there is a strong countervailing factor also. Interact directly with CaseMine users looking for advocates in your area of specialization. 25. He concluded that "this is an action which, given the modern methods of communication could be tried either in South Africa or in this jurisdiction" (para.17). This is contained in paragraph 19, which I have quoted above. This is important where the subsidiary no longer exists or has any assets or with asbestos claims where the disease may not show up for many years. Get 1 point on adding a valid citation to this judgment. Mr Kentridge on the other hand submits that the claim has its closest and real connection with South Africa. 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. This Court, in my judgment, this submission confuses two separate questions employees of that Texas,. In 1994 Penge Mines which are in Transvaal closed in June 1992 facilities in Italy and in Western (., to identify those factual allegations with South Africa in consequence, they say, of physical there. Rule 1 ( 1 ) ) Private International law ( Miscellaneous Provisions ) Act, 1995 might make necessary! Whether the plaintiffs now appeal following: -, 16 should be allowed to prevail a.. Available forum '' point which was not parties to the defendant 's application in this light, the is... August 1988, Supreme Court ), and the action continued in the Spiliada [ 1987 ] 1 and., save with its consent, essentially for the reasons he gave defendant a neutral factor in the Court... 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