Flatela Vava and Others v Anglo American South Africa Ltd

JurisdictionEngland & Wales
CourtQueen's Bench Division
JudgeMR JUSTICE SILBER
Judgment Date16 July 2012
Neutral Citation[2012] EWHC 1969 (QB)
Date16 July 2012
Docket NumberCase No: HQ11X03245

[2012] EWHC 1969 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Mr Justice Silber

Case No: HQ11X03245

Case No: HQ11X03176

Between:
Flatela Vava and Others
Claimants
and
Anglo American South Africa Limited
Defendant
Between:
Jessica Margaret Young (by Her Father and Litigation Friend Kenneth Niall Young)
Claimant
and
(1) Anglo American South Africa Limited
(2) Dr Peter John Jankowitz
(3) Dr Athol Stewart
(4) Dr Brian Royston Glover
(5) Dr Gareth Owen Jones
(6) Dr Ian Smith
Defendants

Alexander Layton QC and Richard Hermer QC (instructed by Leigh Day and Co) for the Claimants in both actions

Guy Philipps QC and Stephen Midwinter (instructed by Linklaters) for the Defendants in the Vava action and (instructed by Reynolds Porter Chamberlain ) for the First Defendants in the Young action

David Thomas (instructed by George Dodd, the Solicitor for the Medical Protection Society) for the Second Defendant in the Young action

None of the other Defendants in the Young action were represented or took part in the proceedings

Hearing dates: 11 May 2012 and 29 June 2012

Approved Judgment

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

MR JUSTICE SILBER MR JUSTICE SILBER

I. Introduction

1

The claimants in each of these actions have brought claims for damages for personal injuries arising out of their employment against Anglo American South Africa Limited ("AASA"), which is a company incorporated under the laws of South Africa. The actions, which are the subject of the present application, have been commenced against AASA, not in South Africa, but in England on the basis that AASA is in fact "domiciled" in England. It is part of the multi-national Anglo American Group of companies and the ultimate parent of AASA is Anglo American PLC ("AA plc"), which is a company incorporated in England.

2

Applications have been made by AASA seeking declarations that this Court has no jurisdiction to hear these claims on the basis that AASA is domiciled in South Africa and is not "domiciled" in England, within the meaning of Article 60 of Council Regulation (EC) 44/2001, which is the Judgments Regulation or Brussels 1 Regulation.

3

The issue raised on this application is whether the Court should grant applications for specific disclosure and for further information from AASA on the basis that it is necessary and proportionate for the claimants to have this material for the jurisdiction application.

4

Mr. Alexander Layton QC and Mr. Richard Hermer QC, counsel for the claimants, contend that they are entitled to this information and to the documents pursuant to CPR 18.1 and CPR 31.12 respectively, but this is strenuously disputed by Mr. Guy Philipps QC and Mr. Stephen Midwinter counsel for AASA, who not only dispute that the English courts have jurisdiction, but also that the claimants are entitled to the information and the disclosure sought.

5

These applications are brought in two separate actions in which AASA are either the defendant or one of the defendants. In the first of these cases, Flatela Vava and others v AASA, claims have been brought by nineteen claimants, who were employed as mine workers in AASA's gold mines in South Africa and who have since contracted silicosis, which they contend was caused by the negligence or the breach of duty of AASA.

6

The second action is Young v AASA and others, in which it is alleged that the claimant suffered avoidable severe consequences of inherited metabolic disorder by reason of the negligence of doctors for whom AASA is alleged to be vicariously liable. There is also a claim of negligence against an independent practitioner Dr Jankowitz for whom AASA is not said to be vicariously liable.

7

I gather that the parties in a further action ( Qashani and Others v AASA) await the outcome of the jurisdictional challenge in this case. That case involves 1106 claimants and this number will probably increase to thousands of claimants given the scale of disease resulting from work at AASA's gold mines.

II. The Issues

8

It is common ground that the claimants can only sue AASA in England if it is domiciled in this country. Article 60 of the Brussels I Regulation provides (so far as relevant) that:—

"1. For the purposes of this Regulation, a company or other legal person or association of natural or legal persons is domiciled at the place where it has its:

(a) statutory seat, or

(b) central administration, or

(c) principal place of business.

2. For the purposes of the United Kingdom and Ireland "statutory seat" means the registered office or, where there is no such office anywhere, the place of incorporation or, where there is no such place anywhere, the place under the law of which the formation took place."

9

There is no dispute that AASA was incorporated under the laws of South Africa and has its registered office there, with the result that the claimants cannot and do not seek to prove that AASA's domicile is in this country on the basis of it being its "statutory seat". The claimants contend that AASA has its "central administration" and/or its "principal place of business" in England. AASA disagree and they contend that the "central administration" and the "principal place of business" of AASA is in South Africa and so the present proceedings cannot be pursued in the English Courts. As I will explain, the claimants correctly accept that their claim based on "central administration" is their stronger claim.

10

The claimants contend that they are entitled to further information pursuant to CPR 18.1(1), which provides that:—

"(1) The court may at any time order a party to –

clarify any matter which is in dispute in the proceedings; or give additional information in relation to any such matter, whether or not the matter is contained in or referred to in a statement of case."

11

An application for further information may be made at any time and it is not confined to matters in a statement of case. The test for succeeding in such an application is whether the information is reasonably necessary to enable a party to prepare its own case or to understand the case it has to meet: see PD18, para. 1.2. In considering the application, the court considers the likely benefit, which will result if the information is given, and the likely cost of giving it. It is not suggested that the giving of the information is not well within AASA's financial resources: see White Book, para. 18.1.5.

12

The claimants also seek orders for specific disclosure pursuant to CPR 31.12, which (so far as relevant) provides that:—

"(1) The court may make an order for specific disclosure or inspection.

(2) An order for specific disclosure is an order that a party must do one or more of the following things –

(a) disclose documents or classes of documents specified in the order;

(b) carry out a search to the extent stated in the order;

(c) disclose any documents located as a result of that search …"

13

Such an application under this rule may be made at any stage of the proceedings: see White Book, para. 31.12.1.1. The court will take account of all the circumstances of the case and the overriding objective in CPR Part 1, which of course require that cases be dealt with justly and, among other things, in a way that ensures that the parties are on an equal footing: PD 31A, para. 5.4.

14

It is common ground that this application raises two issues which are:

(a) Can the claimants show at this stage that their case on jurisdiction (viz. that they have a good arguable case that the defendant's central administration and/or its principal place of business is in England) is at least arguable?

(b) If so, are the orders sought reasonably necessary for the fair disposal of the jurisdiction issues (as described at (a) above)? In particular:

(i) Are the Part 18 Requests reasonably necessary and proportionate to enable the claimants to prepare their own cases and understand the case they have to meet?; and

(ii) Is the request for disclosure necessary and proportionate, in all the circumstances of the case, and having regard to the overriding objective, to assist the claimants in their case?

15

Waller LJ explained in Canada Trust Company v Stolzenberg (No 2) [1998] 1 WLR 547 at page 555 when faced with a dispute on jurisdiction that:—

"'Good arguable case' reflects in that context that one side has a much better argument on the material available".

16

The test of determining whether a claim is "arguable" has been considered in the context of judicial review applications in which it was decided that permission to make such an application on the basis that a claim is "arguable" would be granted "where on a quick perusal of the material then available, the court thinks that it discloses what might on further consideration turn out to be an arguable case" (per Lord Diplock in R v Inland Revenue Commissioners ex parte National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617, 644 a). This test was described by Laws J (as he then was) as "most certainly the general rule" ( R v Secretary of State for Trade and Industry ex parte Greenpeace Limited [1998] Env LR 415,418). It is not disputed that I should adopt this test in dealing with these issues set out in paragraph 14(a) above and I will do so.

III. First limb—Arguability of the Claimants' case on jurisdiction

17

The claimants' primary case is that the "central administration" of AASA is in England and they also contend that the "principal place of business" of that company is in this country. Mr. Layton submitted that the place of "central administration" means where as a matter of fact "the important decisions are made; the entrepreneurial management takes...

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