Young v Anglo American South Africa Ltd & Ors

For jurisdiction under Regulation EC 44/2001, a company’s “central administration” is the place where that company, through its own constitutional organs, takes the decisions essential to its operations and conducts its entrepreneurial management.

The inquiry focuses on the company sued. The influence, strategy or possible control of a parent company does not suffice unless the parent has actually taken over or usurped the subsidiary’s decision-making functions. The claimant must show a good arguable case, meaning that its argument is much the better of the two.

The claimant alleged that negligent neonatal care in Botswana and South Africa caused her serious injury. She sued Anglo American South Africa Limited, a South African company, and Dr Jankowitz in England.

Andrew Smith J held that the English court had no jurisdiction, set aside the claim form and set aside the order permitting service on Dr Jankowitz in New Zealand: [2013] EWHC 2131 (QB). The appeal concerned whether there was a good arguable case that Anglo American South Africa Limited had its central administration in England under Article 60(1)(b) of the Regulation.

1. Disposition. The appeal was dismissed and the order of Andrew Smith J dated 24 July 2013 was upheld. The Court of Appeal comprised Aikens LJ, the Master of the Rolls and Dame Janet Smith; Aikens LJ gave the judgment and the other members agreed.
2. Good arguable case. The claimant had to establish a good arguable case that the company’s central administration was in a Member State. The expression means that one side has much the better of the argument. The standard was established in cases including Canada Trust Co v Stolzenberg (No 2) [1998] 1 WLR 547 and applied to jurisdiction under the Regulation in Bols Distilleries BV v Superior Yacht Services Ltd [2007] 1 WLR 12.
3. Construction. Article 60 required an autonomous interpretation directed to predictability and a real connection with a Member State. “Central administration” meant the place where the company itself, through its relevant organs under its constitutional provisions, took decisions essential to its operations and conducted its entrepreneurial management. The inquiry was distinct from the statutory seat and principal place of business.
4. Groups of companies. The relevant company was the company sought to be sued, not the group as a whole. The English parent’s influence over AASA’s decisions, group strategy and possible power to control AASA were insufficient. Actual assumption or usurpation of AASA’s decision-making functions might have been relevant, but Article 60(1)(b) concerned actualities rather than possibilities.
5. Application. The judge had correctly focused on AASA itself. His overall assessment of the evidence by reference to the juridical concept could not be disturbed unless manifestly wrong. AASA carried out no function in England and conducted its business in South Africa. The English parent’s influence did not alter that conclusion. There was no good arguable case, indeed no case, that AASA had its central administration in England. The construction was clear, so no reference to the CJEU was required.

1. Court of Appeal (Civil Division): Appeal dismissed and the order of Andrew Smith J upheld.
2. Queen’s Bench Division: Andrew Smith J declared that the English court had no jurisdiction, set aside the claim form against AASA and Dr Jankowitz, and set aside permission for service on Dr Jankowitz in New Zealand: [2013] EWHC 2131 (QB).