Lubbe & Ors v Cape Plc

Factual and Procedural Background

This appeal concerns whether an action brought by South African plaintiffs against a defendant company incorporated and domiciled in England should be stayed on grounds of forum non conveniens in favour of proceedings in South Africa. The plaintiffs claim damages for personal injuries allegedly caused by prolonged exposure to asbestos dust in South Africa. The defendant applied for a stay, which was granted by a deputy High Court judge. The plaintiffs appeal that decision.

The defendant undertook to submit to the jurisdiction of the South African High Court if proceedings were brought there, specifically relating to asbestos mines and mills in South Africa named Prieska, Koegas, and Penge. These sites were locations of asbestos mining and processing, with operations controlled at various times by the defendant or its subsidiaries. The defendant ceased connections with these sites by 1979.

The procedural history includes the defendant’s summons dated 7 March 1997, the judge’s order dated 22 January 1998 staying proceedings in England, and the plaintiffs’ appeal against that order. The defendant’s submission to South African jurisdiction was critical to the stay decision, as the company was not otherwise amenable to South African courts.

Legal Issues Presented

1. Whether the English court should stay proceedings on grounds of forum non conveniens in favour of South African courts.
2. Whether the Brussels Convention 1968 applies, potentially requiring referral to the European Court of Justice.
3. Which jurisdiction’s law governs the alleged tortious liability of the defendant.
4. Whether the defendant owed a duty of care to the plaintiffs under English or South African law.
5. Whether South Africa constitutes an "available forum" given the defendant’s conditional submission to its jurisdiction.

Arguments of the Parties

Appellant's Arguments

• The stay is contrary to the Brussels Convention 1968 and should be referred to the European Court of Justice.
• The defendant is liable for breaches of duty of care owed by it directly, not vicariously for its subsidiaries.
• The duty of care arose and was breached largely in England, where policy decisions and instructions were made.
• The South African forum was not available at the time proceedings were issued in England, as the defendant’s submission to jurisdiction was given only later.
• The judge erred in conflating the defendant’s alleged negligence with that of its subsidiaries and in failing to give weight to factual issues arising in England.

Respondent's Arguments

• The judge correctly held that South Africa is the most natural forum, given that the injuries were suffered there and the factual matrix is closely connected to South Africa.
• The defendant is willing to submit to South African jurisdiction, making it an available forum for the plaintiffs.
• The claims are fact-based and relate to conditions in South Africa, not policy decisions made in England.
• Authorities such as Connolly v. R.T.Z. plc and Tulloch v. Williams support the availability of a foreign forum contingent on defendant’s submission.
• The existence of parallel proceedings in Italy is irrelevant to the stay application.

Table of Precedents Cited

Court's Reasoning and Analysis

The court applied the principles of forum non conveniens as established in Spiliada, requiring the defendant to prove that South Africa was a clearly and distinctly more appropriate forum than England. The defendant bore this burden because the plaintiffs sued in England where the defendant is incorporated and domiciled.

The court considered the nature of the claims, which concern personal injuries caused by asbestos exposure in South Africa. The factual matrix, including where injuries occurred and where evidence and witnesses are located, points strongly to South Africa as the natural forum. However, the defendant is not ordinarily amenable to South African jurisdiction without its consent, which it only gave by undertaking during the hearing, after the English proceedings began.

The court analysed the governing law of the tort, recognising complexity in the international elements of the alleged negligence. While some aspects of the duty of care may arise under English law due to policy decisions and instructions originating in England, the physical exposure and injury occurred in South Africa. This creates a hybrid legal situation, with no definitive conclusion on governing law appropriate at this interlocutory stage.

The court found that the judge below erred by not giving sufficient weight to the defendant’s conditional submission to South African jurisdiction and by conflating the defendant’s alleged direct negligence with vicarious liability for subsidiaries. The court also noted that the South African forum was not available "as of right" at the time the English proceedings were commenced, undermining the defendant’s claim that South Africa was an available forum.

While the defendant’s undertaking to submit to South African jurisdiction may be relevant if South Africa is clearly more appropriate, it cannot override the plaintiffs’ right to sue in England where the defendant is domiciled. The court emphasised that the defendant’s choice of jurisdiction cannot be allowed to unduly restrict the plaintiffs’ forum choice absent very strong reasons.

Ultimately, the court concluded that the defendant failed to discharge the burden of showing South Africa to be clearly and distinctly the more appropriate forum, and that the action should not be stayed.

Holding and Implications

The appeal is allowed. The court reversed the stay order and held that the defendant did not establish that South Africa was clearly and distinctly the more appropriate forum for trial. The plaintiffs may proceed with their action in England.

The court declined to remit the matter to the European Court of Justice, finding no necessity for a ruling on the Brussels Convention point.

This decision affirms the principle that where a defendant is domiciled and sued "as of right" in England, a stay on forum non conveniens grounds will only be granted if the foreign forum is clearly and distinctly more appropriate. The conditional availability of a foreign forum dependent on the defendant’s submission is a significant but not determinative factor. No new precedent was established beyond applying established principles to the complex facts of this asbestos-related claim.