Vava and Others v Anglo American South Africa Ltd

JurisdictionEngland & Wales
CourtQueen's Bench Division
JudgeMr Justice Andrew Smith
Judgment Date24 July 2013
Neutral Citation[2013] EWHC 2131 (QB)
Docket NumberCase No: HQ11XO3245
Date24 July 2013

[2013] EWHC 2131 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Mr Justice Andrew Smith

Case No: HQ11XO3245

And HQ11XO3176

Between:
Vava & ors
Claimants
and
Anglo American South Africa Limited
Defendant
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 Smit
Defendants

Guy Philipps QC and Stephen Midwinter (instructed by Linklaters LLP) for the Defendant in action HQ11XO3245 and (instructed by Reynolds Porter Chamberlain LLP) for the First Defendant in action HQ11XO3176

Howard Palmer QC (instructed by George Dodd, Medical Protection Society) for the Second Defendant in action HQ11XO3176

Alex Layton QC and Sudhanshu Swaroop (instructed by Leigh Day LLP) for the Claimants in both actions.

Hearing dates: 1 & 2 May 2013

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 Andrew Smith
1

By their applications in these two actions Anglo American South Africa Limited ("AASA") seeks declarations that the court has no jurisdiction to hear the claims made in them. The only issue is whether, as the claimants maintain, AASA has its "central administration" in England so that under article 60 of the Brussels 1 Regulation ( Regulation EC 44/2001 on the Jurisdiction and Enforcement in Civil and Commercial Matters, the "Regulation"), it is domiciled here and may be sued under article 2; or more precisely the issue is whether the claimants have made out a sufficient case for the purposes of establishing jurisdiction that when the proceedings were issued AASA had its central administration in England. AASA contends that the meaning of article 60 and its application to the facts of these cases is sufficiently clear for me to declare that the Court has no jurisdiction to try the claims. The claimants' primary submission is that the meaning of "central administration" in article 60 is unclear and that, having made findings of fact, I should request a ruling under article 267 of the Treaty on the Functioning of the European Union. Their secondary submission is that otherwise I should refuse the applications and assert the court's jurisdiction over the claims.

2

This being the issue, the nature of the claims in the proceedings is not relevant to what I have to decide, but I shall introduce them briefly. AASA, incorporated in South Africa with its registered office in Johannesburg, belongs to a group of companies commonly referred to as the Anglo American Group (the "Group"). The claimants in claim no HQ11X03245 (the "Vava" action, Flatela Vava and others v Anglo American South Africa Limited) allege that they contracted silicosis from employment in gold mines in South Africa operated by companies that, it is said, were controlled and advised by AASA at times when safety procedures for employees were inadequate and that therefore AASA is liable for their injuries. AASA faces many such claims in the South African courts, and accepts that the claimants in the Vava action would be entitled to bring claims in South Africa. In claim no HQ11X03176 (the "Young" action, Jessica Margaret Young, by her father and litigation friend Kenneth Niall Young, v Anglo American South Africa Limited and others) it is alleged that the claimant, who apparently suffers from disabilities resulting from late diagnosis of phenylketonuria after her birth in Botswana in 1990, was negligently treated by five doctors, the second to sixth defendants, for four of whom AASA is said to be vicariously liable. The other doctor, Peter John Jankowitz, for whom AASA is not said to be vicariously liable, now lives in New Zealand and he was served with the proceedings pursuant to permission granted on the basis that he is a necessary or proper party to the claim against AASA. He initially challenged the permission on the grounds that the claimant had not made proper disclosure when it was obtained but that argument is not pursued: his challenge to jurisdiction now depends upon that of AASA. Dr Jankowitz was represented by Mr Howard Palmer QC, but he advanced no independent arguments.

3

As I have said, the basis on which the claimants contend that the court has jurisdiction over their claims against AASA is that, for the purposes of the Regulation, AASA is domiciled here because it has its central administration here. Article 2 of the Regulation provides that, "…, persons domiciled in a Member State shall whatever their nationality, be sued in the courts of that Member State …". Article 60 provides as follows:

"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."

It has never been suggested that AASA's statutory seat is in England. The claimants initially contended that its principal place of business is in England, but no longer do so.

4

The critical date for determining domicile is the date when proceedings were issued, 25 August 2011 for the Young action and 1 September 2011 for the Vava action: see Dicey, Morris & Collins, The Conflict of Laws (15 th Ed, 2012) para 11–083 fn 236, citing Canada Trust Co v Stolzenberg (No 2), [2000] UKHL 51. There was some difference between the parties about the test for deciding whether the claimants have sufficiently demonstrated that AASA then had its central administration here. Mr Guy Philipps QC, who represented AASA, submitted that the standard is whether they have shown a "good arguable case", citing Canada Trust Co v Stolzenberg (No 2), [1998] 1 WLR 547, in which (at p.555) Waller LJ said that in this context the expression "reflects … that one side has much the better of the argument". Mr Layton submitted that the expression "much the better of the argument" derives from the test, specific to cases in which jurisdiction is asserted in reliance on article 23 of the Regulation, that a jurisdiction clause must be "clearly and precisely demonstrated", and that it is not apt where other provisions of the Regulation are invoked. I accept that the phrase has been used to elucidate the test in that context (see, for example, Bols Distilleries BV v Superior Yacht Services Ltd, [2006] UKPC 45, para 28 per Lord Rodger), but I cannot accept that it is peculiar to cases concerning article 23, or that its application is limited to cases in which jurisdiction is so asserted. What Waller LJ said about the relevant standard of proof was endorsed by the House of Lords (loc cit) and his observation about one side having much the better of the argument has been widely cited with approval, for example by Lord Collins in Altimo Holdings and Investment Ltd v Kyrzyg Mobil Tel Ltd, [2012] UKPC 7 at para 77. Waller LJ was, I think, seeking to convey the flavour of the speeches in Vitkovice Horni a Hutni Tezirstvo v Korner, [1951] AC 869 and the authorities drawn together by Lord Goff in Seaconsar Far East Ltd v Bank Markazi Jomhouri Islami Iran, [1994] 1 AC 438, 453–454.

5

The test suggested by Waller LJ is therefore applicable in this case, but it must be recognised that:

i) It is essentially a reflection of how the court engages with the problem of testing a case and deciding whether it has been sufficiently satisfied of the case given the limitations inherent in interlocutory process, and in particular given that interlocutory hearings should not develop into something akin to a trial; and

ii) The tests of good arguable case and who has much the better of the argument do not apply to questions of law. The court decides them on the application challenging the jurisdiction, unless, perhaps, the question concerns a developing area of the law and findings of fact would assist the decision: see Dicey (cit sup) para 11–147 and fn 423.

6

In article 60 the Regulation adopted a new rule about the domicile of "a company or other legal person or association of natural or legal persons". Article 60 replaced article 53 of the Brussels Convention, under which the test of domicile was where the "seat" of a corporation or other legal entity was and which provided that "in order to determine that seat, the court shall apply its rules of private international law". It draws on the continental notion of a company having a "seat" and article 60(2) caters specifically for the legal systems of the United Kingdom and Ireland which do not have this concept. Like the rest of the Regulation, the article is to be interpreted with a view to achieving the overall purpose of the Regulation rather than by focusing upon literal meaning (in other words, its meaning is determined "teleologically"), and so Mr Philipps relied on paragraph 11 of the recitals to the Regulation:

"The rules of jurisdiction must be highly predictable and founded on the principle that jurisdiction is generally based on the defendant's domicile and jurisdiction must always be available on this ground save in a few well-defined situations in which the subject-matter of the litigation or the autonomy of the parties warrants a different linking factor. The domicile of a legal person must be defined autonomously so as to make the common rules more transparent and avoid conflicts of jurisdiction."

His point was, I think, that AASA's...

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