Lubbe v Cape Plc (Afrika v Cape Plc)

On an application to stay English proceedings for forum non conveniens, the defendant must identify an available foreign forum which is clearly or distinctly more appropriate. Even then, the court must refuse a stay where cogent evidence shows that substantial justice will not be done there.

The absence of financial assistance abroad is not ordinarily sufficient. It is decisive in an exceptional, complex group action which cannot be tried justly without professional representation and expert evidence that the claimants cannot obtain abroad. A defendant’s undertaking to submit may make the foreign forum available. Its timing carries no adverse weight. Public interests unrelated to the parties’ private interests or the ends of justice must be disregarded.

More than 3,000 predominantly South African claimants sought damages from the English parent company of former South African asbestos businesses. They alleged that the parent had exercised control over its subsidiaries while failing to ensure proper health and safety standards. The proceedings raised a common issue about a parent company’s possible duty of care, together with individual questions of exposure, causation and loss.

A deputy High Court judge stayed the original action for forum non conveniens. The Court of Appeal allowed the claimants’ appeal in [1998] CLC 1559. After thousands of further claims were issued, Buckley J restored a stay, and a differently constituted Court of Appeal upheld it in [2000] 1 Lloyd's Rep. 139. In the related appeals before the House, the central questions were whether South Africa was clearly the more appropriate forum and, if so, whether the lack of funding, legal representation and expert assistance there meant that substantial justice would not be done.

1. The plaintiffs’ appeal was allowed unanimously, the defendant’s appeal was dismissed unanimously, and the stay was removed. Lord Bingham delivered the leading speech. Lord Hope added reasons on the availability of the foreign forum and public interest. Lord Steyn, Lord Hoffmann and Lord Hobhouse agreed with both speeches.

2. Per Lord Bingham, applying Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460, South Africa was clearly the more appropriate forum at the first stage. The individual issues of diagnosis, exposure, causation and loss affecting more than 3,000 claimants greatly outweighed the convenience of determining the parent-company issue in England. The altered scale of the litigation justified reconsideration of the earlier forum assessment.

3. Per Lord Bingham, the claimants nevertheless established at the second stage that substantial justice would not be done in South Africa. These complex proceedings required coordinated group litigation, professional lawyers and extensive expert evidence. South African legal aid was unavailable, and the evidence showed that no suitably experienced attorneys could finance the proceedings under contingency-fee arrangements. Without representation and expert evidence, the claims could not be justly determined. This exceptional denial of access to justice provided a compelling reason to refuse a stay.

4. Per Lord Bingham, the absence of an established South African group-action procedure was not, by itself, decisive. Courts should avoid treating ordinary procedural disadvantages as sufficient. The novelty of such litigation in South Africa nevertheless reinforced the funding conclusion because it increased the likelihood of interlocutory disputes, appeals, delay, uncertainty and cost.

5. Per Lord Hope, an alternative forum may be made available by the defendant’s undertaking to submit to its jurisdiction. It was sufficient that the undertaking existed when the stay application was determined. Its timing and the fact that jurisdiction depended upon it carried no weight against the defendant because the choice of forum remained for the court.

6. Per Lord Bingham and Lord Hope, public interests or policies unrelated to the private interests of the parties and the ends of justice have no place in the forum non conveniens assessment. Difficulty in joining South African third parties favoured South Africa, but the claimants’ undertaking to limit relevant claims to the proportion of damage attributable to the defendant avoided significant prejudice. Future claimants could join the group only upon giving the same undertaking.

7. Per Lord Bingham, article 6 of the European Convention on Human Rights produced no conclusion beyond the ordinary forum non conveniens principles, which already precluded a stay where adequate representation and funding were essential but unavailable abroad. It was unnecessary to decide whether article 2 of the Brussels Convention independently prohibited a stay in favour of a non-contracting state. Had that issue been decisive, a ruling from the European Court of Justice would have been required.

• House of Lords: In Lubbe v Cape Plc (Afrika v Cape Plc) [2000] UKHL 41, the plaintiffs’ appeal was allowed, the defendant’s related appeal was dismissed, and the stay was removed.
• Court of Appeal, second appeal: In [2000] 1 Lloyd's Rep. 139, the court dismissed the plaintiffs’ appeals and upheld the stay ordered by Buckley J. It declined to strike out the proceedings as an abuse of process.
• High Court, Queen’s Bench Division: Buckley J held that South Africa was clearly and distinctly the more appropriate forum and ordered a stay. His decision is reported with the second Court of Appeal decision at [2000] 1 Lloyd's Rep. 139.
• Court of Appeal, first appeal: In [1998] CLC 1559, the court allowed the original plaintiffs’ appeal and held that South Africa had not been shown to be clearly and distinctly the more appropriate forum.
• High Court, Queen’s Bench Division: A deputy judge initially stayed the original proceedings on the ground of forum non conveniens.