Young v Anglo American South Africa Ltd and Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Aikens,Dame Janet Smith,The Master of the Rolls |
| Judgment Date | 31 July 2014 |
| Neutral Citation | [2014] EWCA Civ 1130 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B3/2013/2808/QBENF |
[2014] EWCA Civ 1130
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
MR JUSTICE ANDREW SMITH
Royal Courts of Justice
Strand, London, WC2A 2LL
Master of the Rolls
Lord Justice Aikens
and
Dame Janet Smith
Case No: B3/2013/2808/QBENF
Mr Alex Layton QC & Mr Sudhanshu Swaroop (instructed by Leigh Day) for the Appellant
Mr Guy Philipps QC & Stephen Midwinter (instructed by Reynolds Porter Chamberlain LLP) for the First Respondent
Mr Howard Palmer QC (instructed by George Dodd of Medical Protection Society) for the Second Respondent
Hearing date: 25/03/2014
I. Synopsis.
The question that arises on this appeal is whether there is a "good arguable case" 1 that Anglo American South Africa Limited ("AASA"), a South African company, had its "central administration" in England for the purposes of Article 60 of the Brussels 1 Regulation ( Regulation EC 44/2001 –"the Regulation") when the current proceedings were issued on 25 August 201If that were so then in the current proceedings AASA could be sued in England pursuant to Article 2 of the Regulation, 2 and therefore the proceedings could be served on AASA in South Africa without the leave of the court pursuant to CPR Pt 6.33(1). Andrew Smith J held that there was no such "good arguable case". He had to deal with two sets of proceedings, but before the Court of Appeal there was an appeal in only one, that of Jessica Margaret Young, acting by her father and litigation friend, Kenneth Niall Young. The claim is against AASA and Dr Peter Jankowitz ("the Young action"). If the judge was wrong it would mean that Miss Young can bring an action for damages against AASA for alleged medical negligence of various doctors who managed her neo-natal care for whom it is alleged AASA is vicariously liable; and she could also bring an action against Dr Jankowitz, the second defendant. At the relevant time Dr Jankowitz was a paediatrician in independent private practice in Johannesburg, South Africa, although he was not then a consultant. Miss Young was referred to him early in her life and it is said that Dr Jankowitz was negligent in the conduct of those consultations.
Miss Young was born on 30 August 1990 at the Jwaneng Mine Hospital in Botswana. She suffered from Phenylketonuria ("PKU"). It is said that four doctors, who worked in the hospital where Miss Young was born and who are defendants in the Young action but who have not been served with the proceedings, did not guard against, detect or diagnose the PKU. AASA has accepted that it is vicariously liable for the acts and omissions of those doctors insofar as they amounted to a breach of duty. AASA itself is also alleged to have been directly responsible for Miss Young's current condition because it failed to have a system at the Jwaneng Mine for routine screening of babies for PKU, as is done in both the UK and the USA.
Miss Young was referred to Dr Jankowitz in Johannesburg and was seen by him on 7 February 1991. It is alleged that Dr Jankowitz, in breach of duty, failed to detect or diagnose that Miss Young was or might be suffering from PKU. Dr Jankowitz saw Miss Young again in June 1991. On that occasion he considered there was a problem which needed to be referred to a consultant paediatrician in South Africa and that was done.
The current proceedings were served on AASA at its registered office in Johannesburg on 15 December 2011 without the leave of the court. The claimant asserted that AASA had its "central administration" in England, so that it was "domiciled" in England for the purposes of Article 60 of the Regulation. AASA acknowledged service and then on 20 January 2012 applied under CPR Pt 11.1 for a
Article 60 of the Regulation provides:
"1. For the purpose 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".
The claimants have always accepted that AASA's "statutory seat" was not in England. Before Andrew Smith J they also accepted that England was not its "principal place of business". So the only way by which it could be established that AASA was domiciled in England at the relevant time was if the claimants could show that there was a "good arguable case" that its "central administration" was in England.
Dr Jankowitz emigrated from South Africa to New Zealand in 1994 and he continued to live there. On 12 January 2012 the claimant applied to the Master, without notice, for permission to serve Dr Jankowitz with the proceedings in the Young action, relying on CPR 6BPD 3.1(3). This provides, in short, that if a claim form has been served on another defendant and there is between the claimant and that defendant "a real issue which it is reasonable for the court to try", then proceedings may be served upon another person, (in this case Dr Jankowitz) who is "a necessary or proper party to that claim". The Master made his order on 9 February 2012 and Dr Jankowitz was served on 22 February 2012. On 29 March 2012 he applied, under CPR Pt 11.1, to set aside the Master's order for service. On behalf of Dr Jankowitz it is accepted that there is a "real issue which it is reasonable for the court to try" as between Miss Young and AASA. So the issue of whether he was properly served depends entirely on whether AASA has itself been properly served, which in turn depends on the issue of whether there is a "good arguable case" that AASA had its "central administration" in England as at 25 August 2011, ie. when the proceedings in the Young action were issued.
The claimants in both sets of proceedings applied to the court for specific disclosure on the issue of whether AASA was domiciled in England. After a contested hearing before Silber J, he ordered extensive disclosure on 16 July 2012. In his judgment, Silber J concluded that the claimants did not even have an arguable case that AASA had its "principal place of business" in England and that basis for founding jurisdiction under the Regulation was therefore not pursued.
Andrew Smith J heard the applications of AASA for a declaration that the English court did not have jurisdiction to hear the claims in the two actions on 1 and 2 May 2013. He handed down judgment on 24 July 2013. By his order of the same date the judge declared that the English court had no jurisdiction to try either action before him and he set aside the claim form against AASA and Dr Jankowitz and set aside the order permitting service of the proceedings in the Young action against Dr Jankowitz in New Zealand.
The judge gave limited permission to appeal but that was enlarged by Lewison LJ in an order made on 13 November 2013 following an application on paper.
II. The findings of fact of Andrew Smith J.
In order for Andrew Smith J to be able to reach a conclusion on whether there was a "good arguable case" that the "central administration" of AASA was situated in London as at 25 August 2011, he had to make detailed findings of fact about the corporate nature of AASA, how it was run and how it fitted in to the corporate structure of the group to which AASA belonged, which was and is the Anglo-American group, ("the Group"). Andrew Smith J did so partly by reference to conclusions on facts that Silber J had reached in his judgment on the application for specific discovery made by the claimants in the two actions for the purposes of the jurisdiction issue, and partly by reference to all the further evidence which was before him (Andrew Smith J) on the applications before him on the jurisdiction issues.
The "head" company of the Group is Anglo-American PLC (AA), an English company incorporated in 1999 with its head office in London and its shares listed principally on the London Stock Exchange. AA was incorporated when the businesses of AASA and Minorco SA, a Luxembourg company with interests in mining companies outside South Africa, were brought together. The London head office of AA has hundreds of staff members who are engaged in issues of administration and finance, engineering and geology and "Group policies". AA has two important committees; one is the Group Management Committee ("GMC") and the other is the Executive Committee ("Exco"). The judge found that when AA was incorporated "…AASA stopped providing services to other companies and that role was taken over by [Anglo Operations Limited – AOL] a company incorporated in South Africa as a wholly-owned subsidiary of AASA". 3
As for the structure of the Group overall as at August 2011, there was and is no dispute about it and it was set out in diagrammatic form in the outline argument of Mr Alex Layton QC, who represented Miss Young on the appeal. AA at the head of the Group wholly owns Anglo-American Holdings Limited (UK), which in turn wholly owns Anglo-American International SA (Luxembourg), which wholly owns AASA. Thus AA is not directly a shareholder in AASA; the Luxembourg entity is. The judge found that AASA itself was founded in South Africa in 1917 to develop gold mining in the ...
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