Vava v Anglo American South Africa Ltd; Young v Anglo American South Africa Ltd [QBD]
| Jurisdiction | England & Wales |
| Judge | Silber J |
| Judgment Date | 16 July 2012 |
| Court | Queen's Bench Division |
| Date | 16 July 2012 |
Queen's Bench Division.
Silber J.
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 defendant in the Vava action and (instructed by Reynolds Porter Chamberlain) for the first defendant 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.
The following cases were referred to in the judgment:
889457 Alberta Inc v Katanga Mining LtdUNK [2008] EWHC 2679 (Comm).
Canada Trust Co v Stolzenberg (No. 2) [1998] CLC 23; [1998] 1 WLR 547.
Harris v Society of Lloyd'sUNK [2008] EWHC 1433 (Comm).
King v Crown Energy Trading AGUNK [2003] EWHC 163 (Comm); [2003] 2 CLC 540.
King v Telegraph Group LtdWLR [2005] 1 WLR 2282.
Ministry of Defence and Support of the Armed Forces for Iran v Faz Aviation [2007] IL Pr 42.
R v IR Commrs, ex parte National Federation of Self-Employed and Small Businesses LtdELR [1982] AC 617.
R v Secretary of State for Trade and Industry, ex parte Greenpeace Ltd [1998] Env LR 415.
Rome v Punjab National BankUNK [1989] 2 All ER 136.
Wood v Holden [2005] EWHC 547 (Ch); [2006] 1 WLR 1393 (CA).
Conflict of laws — Domicile of company — Personal injury — Disclosure — Further information — Whether personal injury claimants had good arguable case that defendant South African company domiciled in England — Whether disclosure orders reasonably necessary for fair disposal of jurisdiction issue — Arguable case that central administration of company where management decisions taken — Arguable case that management decisions taken in London where ultimate parent located — Order for specific disclosure of documents relevant to domicile necessary and proportionate — Order for provision of information premature — Council Regulation 44/2001, art. 60 — Civil Procedure Rules 1998, r. 18.1, 31.12.
This was an application by personal injury claimants for specific disclosure and for further information from the defendant South African company (AASA) on the basis that disclosure was necessary and proportionate in order to determine AASA's challenge to English jurisdiction.
The claimants brought claims for damages for personal injuries arising out of their employment in gold mines belonging to AASA in South Africa. AASA was part of the multi-national Anglo American group of companies of which the ultimate parent was an English company (AA plc). AASA was sued in England on the basis that it was domiciled in England within the meaning of art. 60 of Council Regulation (EC) 44/2001.
The claimants contended that AASA had its “central administration” and/or its “principal place of business” in England and that they were entitled to further information pursuant to CPR 18.1(1) and orders for specific disclosure pursuant to CPR 31.12 to make out that case.
AASA disputed that the English courts had jurisdiction and also that the claimants were entitled to the information and the disclosure sought.
The issues were whether the claimants could show that they had a good arguable case that the defendant's central administration and/or its principal place of business was in England, and if so whether the orders sought were reasonably necessary for the fair disposal of the jurisdiction issues.
The assets of AASA had an approximate value of £6.5 billion, which constituted approximately 40% of the worldwide assets of the Anglo American group. AASA did not carry out any mining or operating business and did not have any employees. Its directors were largely based in South Africa. Its chief executive officer reported directly to the chief executive officer of AA plc in London. The services necessary for it to fulfil its functions were provided by employees of a subsidiary (AOL).
It was agreed that the operative date for determining the domicile of AASA was at the latest 1 October 2011.
Held, ordering specific disclosure:
1. The location of the “central administration” of an entity was only one of the alternative places in which it was domiciled and that indicated that it was not necessarily the same as either the “principal place of business” or the “statutory seat” of a company, which was the company's registered office. The cases and commentaries supported the view that the “central administration” of a company was where decisions were made; and where the entrepreneurial management took place. Thus the place of central administration was not simply where a company's board meetings and AGMs were held. The claimants had at least an arguable case that the “central administration” of a company was where management decisions were taken and where entrepreneurial decisions took place irrespective of where its economic activities occurred.
2. The fact that AASA was a wholly owned subsidiary did not mean that it had the same “central administration” as AA plc. Nevertheless there were a number of factors which together established an arguable case that London, as the headquarters of AA plc, was the place where management/entrepreneurial decisions relating to AASA's business were taken. Those factors included the fact that AASA's assets amounted to 40% of the group's assets; the infrequent board meetings of AASA, which indicated that major decisions were very likely to have been taken outside those meetings; the fact that AASA had regard to the policy and strategy of AA plc in making its own decisions; and the role of AA plc in either making decisions relating to AASA or affecting its decision-making ability. On the available material the claimants did not have an arguable case that AASA's “principal place of business” was in England, because the evidence that AASA conducted its economic activities in England or anywhere other than in South Africa did not reach the requisite threshold.
3. AASA alone had access to the material relevant to determining where its managerial and entrepreneurial decisions were taken. There was also a massive disparity in the financial resources open to the parties. If no order was made requiring AASA to produce documents or further information, there was a very great risk that the claimants would be contesting the jurisdiction issue at an unfair disadvantage. It was necessary and proportionate to order specific disclosure of appropriate documents, but not to order AASA to provide the information sought. It might well be that a very large number of the requests for information would be answered by a perusal of the appropriate documents. Also, when appropriate disclosure had taken place, the focus of the claimants' case might change and therefore it would be premature and unnecessary to order the supply of further information as well as appropriate disclosure at this stage. If the requisite information did not become available as a result of the order, it was open to the claimants to make a further application for disclosure or information.
4. Disclosure was ordered of documents covering the two year period before the operative date of 1 October 2011, to the extent that they showed where and how and by whom entrepreneurial/management decisions relating to AASA were taken. That disclosure included AASA's annual accounts for the previous three years; its memorandum and articles of association, which were not publicly available in South Africa; documents which specified the powers and responsibilities reserved or delegated by AASA to AA plc or its committees in respect of managerial/entrepreneurial decisions; any authority policy manual of AASA in so far as it concerned the delegation of decision-making powers from AASA; policies, instructions and manuals produced by AA plc that applied to the decision-making of AASA; the contracts of directors so far as they related to management/entrepreneurial decisions made or to be made by AASA, including any duty to liaise, consult with and report to AA plc in relation to any such matters; minutes of meetings of AASA directors and of meetings between them and the CEO of AA plc and certain documents referred to in AASA board minutes.
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 I 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...
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Young v Anglo American South Africa Ltd and Others
...whether AASA was domiciled in England. After a contested hearing before Silber J, he ordered extensive disclosure on 16 July 2012 (see [2012] 2 CLC 684). In his judgment, Silber J concluded that the claimants did not even have an arguable case that AASA had its “principal place of business”......
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Merrill Lynch International v Città Metropolitano Di Milano
...[2019] UKSC 20 at [43] by reference to Rome v. Punjab National Bank [1989] 2 All ER 136and Vava v. Anglo American South Africa Ltd. [2012] 2 CLC 684; [2012] EWHC 969 (QB). This is not, however, confined to specific disclosure of a ‘killer document’ or ‘smoking gun’ as was suggested on beha......