Vava & Ors v Anglo American South Africa Ltd

For an interlocutory jurisdiction challenge, claimants must show at least an arguable case that the defendant is domiciled in England. Under Article 60 of the Brussels I Regulation, central administration concerns where management and entrepreneurial decisions are made. It need not be the registered office, the place of board meetings, or the place of economic activity. A parent company’s influence may be relevant to that factual inquiry, although the subsidiary remains a separate legal person.

The principal place of business is a distinct concept, directed to the most important centre of the company’s economic, industrial or commercial activity. Disclosure for determining jurisdiction is exceptional. It must be reasonably necessary and proportionate. Appropriate specific disclosure should ordinarily be considered before extensive requests for further information.

Two actions concerned personal-injury claims against Anglo American South Africa Ltd, a South African company within the Anglo American group. The claimants sought to establish English jurisdiction by alleging that the defendant’s central administration and principal place of business were in England under Article 60 of the Brussels I Regulation.

Before the substantive jurisdiction challenge, the claimants applied under CPR 18.1 and CPR 31.12 for extensive further information and specific disclosure. They argued that the material was needed to investigate where management and entrepreneurial decisions concerning the defendant were made. The defendant disputed both the jurisdictional case and the necessity and proportionality of the applications.

1. Arguability. The claimants had a good arguable case that the defendant’s central administration was in England. The appropriate inquiry was where management and entrepreneurial decisions concerning the company were made. The concept was not confined to the place of incorporation, registered office, board meetings or formal constitutional decision-making.
2. The defendant remained a separate company from its English parent. Nevertheless, the parent’s policies, strategy, committees, officers and practical influence could be relevant evidence of where decisions relating to the defendant were made. The infrequency of the defendant’s board meetings, the scale of its assets, the role of senior officers connected with the parent, and the activities of group committees cumulatively made the English case arguable.
3. The claim based on principal place of business was materially weaker. That concept concerned the most important centre of the company’s economic, industrial or commercial activity, including where its employees and business assets were deployed. On the evidence, the claimants could not show the requisite arguable case that those activities were conducted in England.
4. Disclosure. Disclosure for an interlocutory jurisdiction application should be ordered sparingly and only where clearly necessary for the fair disposal of the issue. The court had to apply the overriding objective, including equal footing, while preventing a fishing exercise.
5. Specific disclosure was necessary and proportionate because the defendant alone possessed much of the relevant first-hand material and there was a substantial inequality of resources. Disclosure was preferable initially to the extensive Part 18 requests because contemporaneous documents were likely to answer many of the requests more efficiently and objectively.
6. The court therefore ordered limited disclosure of documents bearing on who made management or entrepreneurial decisions concerning the defendant and where those decisions were made. The requests for further information were refused at that stage, without prejudice to a later application if disclosure proved inadequate.