Rachel Lubbe and Others v Cape Plc

JurisdictionEngland & Wales
JudgeLORD JUSTICE EVANS,LORD JUSTICE MILLETT,LORD JUSTICE AULD,LORD JUSTICE TUCKEY,LORD JUSTICE ALDOUS,LORD JUSTICE PILL
Judgment Date29 November 1999
Judgment citation (vLex)[1998] EWCA Civ J0730-19
CourtCourt of Appeal (Civil Division)
Docket NumberQBENI 98/0192/1,Case No: QBENI 1999/0841/1
Date30 July 1998

[1998] EWCA Civ J0730-19

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION

(SIR MICHEL KALLIPETIS QC (Sitting as a Deputy High Court Judge))

Royal Courts of Justice

The Strand

London WC2

Before:

Lord Justice Evans

Lord Justice Millett

Lord Justice Auld

QBENI 98/0192/1

(1) Rachel Lubbe
(2) Nkala Johannes Maile
(3) Matlaneng Johannes Mohlala
(4) Catherine Eksteen Nel
(suing as Administratrix of the Estate of Mathys Christofel Nel)
(5) Sebushi Pauline Selwana
Appellants
and
Cape Plc
Respondents

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

LORD JUSTICE EVANS
1

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 claim is for damages for personal injuries which were sustained in South Africa, caused over a long period during which, it is alleged, the plaintiffs were exposed to the risks of inhaling asbestos dust. Michel Kallipetis Q.C. sitting as a deputy judge of the High Court ordered a stay, and the plaintiffs now appeal.

2

Barbara Dohmann Q.C. 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. A ruling that it does apply would involve a departure from the decision of this Court in Re. Harrods (Buenos Aires) Ltd [1992] Ch.72.

3

The defendant's application was by Summons dated 7 March 1997 claiming :-

"3. A declaration that in the circumstances the Plaintiff's action should not be allowed to proceed on the principles of forum non conveniens."

4

The judge made the following Order dated 22 January 1998 :-

"AND UPON the Defendant giving the undertaking recorded in Appendix "A" hereto IT IS ORDERED that :-

(1) All further proceedings in this action be stayed on the grounds that the appropriate forum for the trial of this action and the issues therein is the High Court of South Africa, ….".

Appendix "A" contained five numbered undertakings, the essential one being -

"(2) the defendant consents to these actions by these plaintiffs relating to Prieska, Koegs and Penge being heard together in any provisional division of the High Court of South Africa having jurisdiction in respect of them, provided that all cases of each of these Plaintiffs are brought in the same Court ; ….".

5

In other words, that the Defendant would submit to the jurisdiction of the High Court of South Africa, if the proceedings were brought there. 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. Prieska and Koegas are in the Northern Cape district. Prieska ceased operations and the area was "rehabilitated" in 1994. The Penge Mines which are in Transvaal closed in June 1992.

6

The forum non conveniens application is of course governed by the principles stated in The Spiliada [1987] 1 A.C. 460. 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). 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]").

7

A point was raised in the course of argument by Millett L.J. which was not relied upon before the judge and which introduces a factor which was not present or taken into account in Spiliada. The defendant company is not amenable to the jurisdiction of the South African Courts, save with its consent. This was the reason for the undertakings recorded in the Order.

8

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). 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. 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. Order 11. We are told, finally, that jurisdiction must exist at the time when the action is instituted by issue of Summons.

9

The first requirement is satisfied in the present case, or so it would seem, but the second is not. 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. Hence the undertaking to submit to proceedings, if and when they are issued. Without it there would be no basis on which South African jurisdiction could be exercised. This undertaking enables the defendants to contend that the South African courts are "available" to the plaintiffs for the purposes of the Spiliada principles. 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.

10

Background

11

The judge's summary can be quoted in full. Following the discovery of blue asbestos near Prieska in South Africa,

"It was a Cornish engineer named Frances Oates who was the driving force behind a consortium formed to mine the asbestos at the end of the 19th Century and in 1893 this cave birth to the predecessor of the defendant company The Cape Asbestos Company Limited ("London Cape"). Their operations centred on mines at Prieska and Koegas.

From its inception, the English company established a local agency to run the South African operations and appointed local directors to operate under regulations drawn up by the English company. Francis Oates was among the first of the local directors to be appointed and later that same year he was appointed as a director to the Board of the English company. The Defendants claim that the English company did not concern itself with the actual mining operations but merely owned the land and the mineral rights over the land and paid anyone who brought mineral fibre to its store. This appears to have been the pattern in the early days, according to the potted history reproduced at E/47 of exhibit "RM1".

Another development which may have some relevance in view of a late application by the Plaintiffs, was the acquisition of an Italian factory near Turin in 1894 to experiment in the manufacture of goods from Cape Blue. These operations were funded from London and the history of the company (E/52) describes the position thus : "After a year the company had little to show financially, but it had its two legs firmly planted in South Africa and Italy, a virile system of arteries running from London to many countries abroad, and an energetic leader in the shape of the peripatetic Mr Oates" There then follows on that page an extract from his speech to the shareholders in which he extols the virtues of the company and the operations in mining and manufacturing of blue asbestos.

The Boer War interrupted the mining of Cape Blue until 1903 and by 1905 the mine at Prieska was in full operation. In 1914 brown asbestos, called Amozite was mined in Penge, named after the London suburb. In 1916 Egnep Limited and Amosa Limited were registered to exploit the deposits of brown asbestos or amosite at Penge. London Cape bought amozite and processed it at its factory in Barking, Essex. In the early 1920s London Cape contemplated acquiring the mines at Penge, but the depression intervened and it was not until September 1925 that London Cape acquired both Egnep and Amosa.

After the Second World War the demand for asbestos increased. The Cape Blue mining operations were run from Kimberley by the local Board of Directors established in 1894 and the amozite mining at Penge was run by Egnep from Cape Town. It is not disputed that up to 1948, London Cape controlled the operations in South Africa.

In 1948 two new companies were formed : Cape Asbestos South Africa (Pty) Limited ("CASAP") a subsidiary of London Cape as a holding company, and Cape Blue Mines (Pty) Limited to acquire the Cape Blue mining assets. A Mr Riley was sent out from London to take up a permanent appointment controlling the whole of London Cape's asbestos operations in South Africa. He retained his seat on the Board of Cape London and reorganised the structure of the South African companies by transferring them all to Johannesburg.

By the end of the Second World War London Cape controlled the whole operations of asbestos production from "mine to manufacture" through a host of subsidiary companies. At...

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12 cases
  • Lubbe and Others v Cape Plc and related appeals
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    • House of Lords
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1 books & journal articles
  • U.K.-based Multi-national Corporations at Risk from Large-scale Industrial Disease Actions.
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    • Defense Counsel Journal Vol. 68 No. 3, July 2001
    • 1 July 2001
    ...steps to limit their risk of exposure. (1.) [2000] 1 W.L.R. 1545. (2.) [1998] C.L.C. 1559 (Evans, Millet and Auld, L.JJ.). (3.) [2000] 1 Lloyd's Rep. 139 (Buckley, (4.) Id. (Pill, Aldous and Tuckey, L.JJ.). (5.) [1986] 3 All. E.R. 843 (H.L.): [1987] A.C. 460. (6.) [1998] A.C. 854. (7.) See ......

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