Lubbe & Ors v Cape Plc

On a forum non conveniens application, an English defendant must show that a foreign forum is available and clearly and distinctly more appropriate, despite the claimant’s right to sue in England. A forum dependent on the defendant’s consent is not ordinarily available when proceedings begin. A later undertaking may assist the ends of justice but does not ordinarily confer a unilateral choice of forum. In a land-based injury claim, local connections carry substantial weight. However, allegations that an English parent made relevant policy decisions and gave instructions in England may provide a powerful countervailing connection. The governing law remains an open issue if it has not been tried. An independent duty owed by the parent must be distinguished from subsidiary liability.

South African claimants alleged personal injuries from asbestos exposure at mines and mills operated by subsidiaries of an English-domiciled company. The deputy High Court judge stayed the claims in favour of South Africa after the company undertook to submit to that jurisdiction. The claimants appealed, arguing that the alleged negligence was the company’s own, arising from policy, instructions and advice made in England, and that South Africa was unavailable without the undertaking. They also raised the Brussels Convention 1968, but the Court of Appeal held that a European Court ruling was unnecessary. The central question was whether South Africa was clearly and distinctly the more appropriate forum.

Appeal allowed. Evans LJ gave the leading judgment. Millett and Auld LJJ agreed, making the decision unanimous.

1. The governing principles were those in Spiliada [1987] 1 A.C. 460. Because the claimants had invoked English jurisdiction as of right, Cape had to show that South Africa was an available forum and clearly and distinctly more appropriate, having regard to the interests of both parties and the ends of justice. Due weight was given to the claimants’ right to sue in England at the first stage of the inquiry. The court also relied on MacShannon [1978] A.C. 795.
2. South Africa was not ordinarily available when the proceedings began because Cape could not be sued there without its consent. The later undertaking could contribute to the ends of justice, but it gave Cape a choice of jurisdiction and did not make this an extreme case in which that choice should prevail. The timing issue was considered by reference to Mohammed v Bank of Kuwait [1996] 1 W.L.R. 1483.
3. The court distinguished the question of the governing law from the location of the constituent elements of the tort. The law governing the tort depended on its substantial elements, and different issues could be governed by different systems of law. The court considered Red Sea Inc Company Ltd v Bouygues S.A. [1995] 1 A.C. 1990, Metall and Rohstoff A.G. v Donaldson Luftkin & Jenrette Inc [1990] 1 Q.B. 391, Distillers Co Ltd v Thompson [1971] AC 458 and Boys v Chaplin [1971] A.C. 356. Whether an English parent owed an independent duty to persons overseas was a substantial unresolved issue and, prima facie, more appropriately decided by the English courts.
4. The pleaded case concerned Cape’s own alleged negligence through its directors and employees, not vicarious or other liability for subsidiary companies. That distinction was material. Adams v Cape Industries plc [1990] 1 Ch.473, Ngcobo v Thor Chemical Holdings Ltd (C.A. 9 October 1995, unreported) and Durham v T & N plc (C.A. 1 May 1996, unreported) involved materially different claims or facts and did not govern the appeal. The additional observation concerning compliance with local regulations was supported by Budden v BP & Shell.
5. South Africa had strong local connections because the injuries and industrial activities occurred there. England nevertheless had significant factual connections because the alleged controlling decisions and instructions were made there. Cape had not shown that South Africa was clearly and distinctly the more appropriate forum. The stay was discharged, the appeal allowed with costs, and leave to appeal to the House of Lords refused. The Brussels Convention issue therefore did not arise.

• Court of Appeal (Civil Division): Appeal allowed with costs. Leave to appeal to the House of Lords was refused.
• High Court of Justice, Queen’s Bench Division: The deputy judge stayed the proceedings on the ground that the High Court of South Africa was the appropriate forum, subject to Cape’s undertaking to submit to that jurisdiction.