Young v Anglo American South Africa Ltd & Ors

The Court of Appeal held that the claimant did not have a "good arguable case" that Anglo American South Africa Limited (AASA) had its "central administration" in England for the purposes of Article 60(1)(b) of the Brussels I Regulation (Regulation EC 44/2001). The court confirmed that the correct legal test for "central administration" is the autonomous one: it is the place where the company itself, through its organs according to its constitution, takes the decisions essential for its operations. Influence by a parent company or group bodies based elsewhere is not sufficient, absent agency, delegation or evidence that the parent has usurped the subsidiary's decision‑making. Because AASA carried out its business and essential functions in South Africa, and there was no arguable evidence that AA had taken over AASA's decision‑making, the appeal was dismissed.

Background and parties:

• The appellant, Jessica Margaret Young (by her father and litigation friend), alleged medical negligence in relation to neonatal care and sought to sue AASA (a South African company) and Dr Peter Jankowitz.
• Key procedural issue: whether AASA was domiciled in England under Article 60(1)(b) of the Brussels I Regulation so that service out to South Africa could be effected without leave under the Civil Procedure Rules.

Procedural posture:

• Proceedings were issued 25 August 2011 and served on AASA in Johannesburg on 15 December 2011. AASA applied under CPR Pt 11.1 for a declaration that the English court had no jurisdiction. Andrew Smith J in the Queen's Bench Division held there was no good arguable case that AASA's central administration was in England and set aside service; permission to appeal to the Court of Appeal was given and later enlarged.
• Prior to that Silber J had ordered extensive disclosure on the domicile issue. The Master had made an order permitting service on Dr Jankowitz in New Zealand, which was subsequently set aside pending the jurisdictional determination.

Nature of the application / relief sought:

• The appellant sought to found jurisdiction in England under Article 2 of the Regulation by showing AASA was domiciled in England under Article 60(1)(b) (central administration). If successful, this would permit service on AASA in South Africa without leave.

Issues framed by the court:

• 1) The proper construction of "central administration" in Article 60(1)(b) of the Regulation.
• 2) Whether the meaning was uncertain such that a reference to the Court of Justice of the European Union was required.
• 3) On the correct test, whether there was a good arguable case that AASA's central administration was in England as at 25 August 2011.

Court's reasoning and conclusions:

• The court reiterated the established "good arguable case" standard for provisional jurisdictional factual assessments (Canada Trust principle).
• For Article 60(1)(b) the court adopted the autonomous interpretation: "central administration" is the place where the company's own organs take decisions essential for its operation, i.e. where the company conducts its entrepreneurial management. This excludes attributing central administration to another group entity merely because that entity influences decisions.
• Having reviewed commentaries, CJEU/Advocate General opinion, and German case law, the court concluded the meaning was clear and no reference to the CJEU was required.
• On the facts, the court accepted Andrew Smith J's findings that AASA carried out its business in South Africa, had few board meetings, performed principally a holding and support role, appointed its own auditors and took tax/dividend decisions in South Africa, and did not have its central administration in England. Influence by AA in London did not suffice. Therefore there was no good arguable case that AASA was domiciled in England, and the appeal was dismissed.

Subsidiary factual findings, the procedural history of disclosure, and the court's refusal to treat theoretical parental control as determinative were all treated as material to the result.

This is an appeal from Andrew Smith J's decision. The Court of Appeal dismissed the appeal. It held that Article 60(1)(b) must be given an autonomous meaning: a company's "central administration" is the place where the company itself, through its own organs, takes the decisions essential for its operations. Influence from a parent company or group bodies does not locate the subsidiary's central administration abroad unless the parent has taken over the subsidiary's decision‑making. On the facts the court agreed with Andrew Smith J that AASA's central administration was in South Africa and there was no good arguable case to the contrary; therefore English jurisdiction did not lie.

Appeal to the Court of Appeal from the Queen's Bench Division (Andrew Smith J) [2013] EWHC 2131 (QB). Silber J ordered disclosure on 16 July 2012 in earlier interlocutory proceedings. Leave to appeal was initially limited and later enlarged by Lewison LJ (order dated 13 November 2013). The Court of Appeal handed down judgment [2014] EWCA Civ 1130 dismissing the appeal.