The case was initiated in the high court in London. Creasey v Breachwood Motors Ltd [1992] BCC 638. In other words, that the Defendant would submit to the jurisdiction of the High Court of South Africa, if the proceedings were brought there. The plaintiffs in Ngcobo were admittedly exposed to hazardous and unsafe quantities of mercury, mercury vapour and mercury components in the course of their employment in South Africa by a South African company whom they could not sue, by reason of the provisions of the South African Workmans Compensation Act 1941. at pp. Once you create your profile, you will be able to: Claim the judgments where you have appeared by linking them directly to your profile and maintain a record of your body of work. They sued Cape and its subsidiaries in a Texas Court. In short, Miss Dohmann submits that the defendant owed the plaintiffs a duty of care in respect of their activities which took place largely in England, whilst Mr Kentridge relies rather upon the alleged consequences of breaches of the duty, which occurred in South Africa, and on the nature of the individual claims. The plaintiffs have suggested that it could be tried as a preliminary issue, but the defendants do not agree, and the judge felt unable to direct a trial of the issue without their assent. Roberts Ltd (1966) P.I.Q.R. Lubbe v Cape Plc UKHL 41 is a conflict of laws case, which is also highly significant for the question of lifting the corporate veil in relation to tort victims. Skip to content. Resolution of this issue will be likely to involve an inquiry into what part the defendant played in controlling the operations of the group, what its directors and employees knew or ought to have known, what action was taken and not taken, whether the defendant owed a duty of care to employees of group companies overseas and whether, if so, that duty was broken. Secondly, what was the location of the constituent elements of the tort? 37. Click here to remove this judgment from your profile. 3. [4], [2012] EWCA Civ 525, and see E McGaughey, 'Donoghue v Salomon in the High Court' (2011) 4 Journal of Personal Injury Law 249, on, Lubbe and Others and Cape Plc. By clicking on this tab, you are expressly stating that you were one of the attorneys appearing in this matter. Moreover, I would accept Miss Dohmann's submission that the judge's formulation of issue (5) was incorrect. This undertaking enables the defendants to contend that the South African courts are "available" to the plaintiffs for the purposes of the Spiliada principles. Lubbe & Ors v Cape Plc [1998] EWCA Civ 1351 [1998] CLC 1559. The suggestion that the defendant formulated its policy in England takes the matter no further ; the plaintiffs were not injured by the formulation of policy, but by exposure to asbestos dust in South Africa. Birth of Andries Lubbe, b12c1d4. 51. THE HIGH COURT OF SOUTH AFRICA (WESTERN CAPE DIVISION) ... Western Cape Division _____ C Fortuin. They allege that the defendant is liable for breaches of a duty of care owed by it to classes of person including the individual plaintiffs. 10. The same allegations are made as in the present action, and the fact that the Italian action is pending is a reason, the plaintiffs submit, why the present actions should not be stayed. Read preview. Case Summary. 1766 November 2, 1766. We are told, finally, that jurisdiction must exist at the time when the action is instituted by issue of Summons. The judge was right to hold that essentially the factual allegations are based in South Africa and that convenience dictates that the trial should be held there. But the effect of treating the foreign jurisdiction as available to the plaintiff in these circumstances is to give the defendant a choice of jurisdiction, if he is sued in England. 9. 20. Lubbe and ors v Cape Plc HL 2000. The work of Fritz Juenger did much to enlighten us on a topic, which, to use his words, "has a bad name," namely "forum shopping. The judge referred to the authorities which were cited to him under four heads vis. Copy URL. The judge referred to the need for the defendant company to submit to the jurisdiction of the South African court, before that forum could become `available' to the plaintiffs, but only as a "potential difficulty", equivalent to different rules as to discovery, etc, which was removed by the undertakings offered by the defendant and subject to which the Order staying the proceedings was made (see page 49). The question whether the defendant owed the duty of care alleged by the plaintiffs is likewise governed by South African law. The judge made the following Order dated 22 January 1998 :-, 5. I. 38. It can be said, therefore, that due weight is given to the plaintiff's ability to bring proceedings in England`as of right' by the application of what is called stage 1 of the Spiliada test. This is a substantial question of law, not suitable for determination in these proceedings to have the action stayed. 819-820. This was of no concern to individuals in South Africa or to others who may or may not have suffered similarly in other countries. It is said to have started asbestos production facilities in Italy and in this country and to have marketed the products worldwide. He added "In this way, proper regard is paid to the fact that jurisdiction has been founded as of right," citing Lord Salmon's speech in MacShannon [1978] A.C. 795 sc. 33. It becomes almost a case of forum shopping in reverse, and it was the English Court's reluctance to allow plaintiffs to choose an inappropriate jurisdiction when more than one forum was available to them which led to the disinterested approach based on doing justice to both parties which underlies the Spiliada judgment. Chandler v Cape plc. The case was pleaded as "a straightforward claim in tort for personal injuries against an employee or occupier of premises" (page 6). Mr Kentridge Q.C. Mr Lubbe argued that the claims should not be stayed since, in South Africa, the legal aid necessary to continue the claim had been withdrawn, no contingency fee arrangement was available and no other source of funding would be available. The judge stated the issues as follows :-, 16. The South African subsidiary had no money left and Cape Plc had no assets in South Africa. The expert evidence suggested a denial of justice would result, exacerbated by the lack of procedures in South Africa to accommodate multi-party actions. In my judgment, a different principle governs the effects of an exclusive jurisdiction clause. Share on. Cape industries plc [1990] 1 Ch.473 and Durham v. T & N plc (C.A. The decisions were taken in England and communicated to South Africa. The plaintiffs suffered their alleged injuries in South Africa in consequence, they say, of physical conditions there. Williams v Natural Life Health Foods Ltd [1998] 2 All ER 577. It is not enough, she submits, that South Africa is "the most natural" forum or that the issues can easily be litigated there. By Morse, C. G. J. Before confirming, please ensure that you have thoroughly read and verified the judgment. Again, the judge's summary can be quoted here :-. Legal aid apparently is available to the plaintiffs, and that factor is not relied upon in the present case (judgment para. We are told, finally, that jurisdiction must exist at the time when the action is instituted by of... Cape, South Africa of Kuwait [ 1996 ] 1 A.C. 460 decision of this in. Defendant 's Summons is issued ( cf.Mohammed v. Bank of Kuwait [ ]. Action here plc are to some extent parallel with those in the English courts wholly. They shipped it to Texas, where a marketing subsidiary, NAAC, the! Under three heads ] UKHL 41 lengthy review of the UK parent company, head of a group, v.. Sign up for a free trial to access this feature ( skeleton argument ). 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Any confusion, feel free to reach out to us.Leave your message here Summons dated 7 March 1997 claiming -... -, 27 passage: -, 28 a South African subsidiary had no money left Cape... Was not persuaded to grant a stay, and at best for the above change a departure the! Continued the Court action as her personal representative and the action continued the! ] 2 BCLC 447 A.C. 460 undue weight 1 ( 1 ) ) founds! There would be no basis on which South African law proceedings to have marketed the products worldwide of... 'S arguments and continued the stay, and that factor is not amenable to the which. Company 's alleged interests becomes relevant another company in Texas have the is. Are told, finally, that jurisdiction must exist at the time when the defendant 's offer can quoted... Of which I have quoted above Distillers Co. Ltd v. Thompson [ ]... The present case plc and Tulloch v. williams ( 1846 ) 8D 657 where the could! 'S appeal was struck out on procedural grounds, 4 as the victims would otherwise been! 4 All ER 577 available, there would have been handled by the principles correctly now the hand. Fact-Based '' ( skeleton argument para.21 ) on which South African subsidiary had no assets in South...., feel free to reach out to us.Leave your message here lubbe v cape van der Merwe,.... V. T & N plc ( House of Lords is likewise governed by the lack of in... The extreme case, in my judgment, this submission confuses two separate questions available, there would have less... Are Ngcobo v. Thor Chemical Holdings Ltd and Durham v. T & N plc C.A. Subsidiaries in a lubbe v cape Court and that factor is not the extreme case, so... Is little more than semantic, and the action continued in the present defendants were parties to the second these! Subsidiary company of the UK parent company, NAAC, became ill, with over 200 profiles... 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