Lubbe and Others and Cape Plc. and Related Appeals

Factual and Procedural Background

More than 3,000 Plaintiffs, almost all South African residents of modest means, seek damages for personal injuries or death allegedly caused by exposure to asbestos in South Africa before 1979. They sue Company A, an English-incorporated parent company that historically owned and controlled South-African mining and manufacturing subsidiaries. Only one Plaintiff resides in England.

The first writ was issued in February 1997. Company A immediately applied for a stay on forum non conveniens grounds. Judge Kallipetis (High Court) granted the stay. In July 1998 the first Court of Appeal panel reversed that decision, permitting the action to proceed in England. After leave to appeal was refused, thousands of additional writs were issued and consolidated into a group action.

Company A renewed its stay application (and alleged abuse of process). Judge Buckley in July 1999 and a second Court of Appeal panel in November 1999 both ruled that South Africa was the clearly more appropriate forum and stayed all proceedings.

The House of Lords granted the Plaintiffs leave to appeal against the second Court of Appeal’s decision and permitted Company A to challenge the earlier Court of Appeal ruling in the original action. The instant opinion decides both interlocutory appeals.

Legal Issues Presented

1. Whether the proceedings should be stayed in favour of South Africa under the forum non conveniens doctrine.
2. Whether, at the second stage of the Spiliada test, the absence of legal aid, contingency-fee funding, and established group-action procedures in South Africa would deny the Plaintiffs substantial justice.
3. Whether Article 2 of the Brussels Convention removes or restricts the English court’s power to grant a stay in favour of a non-Convention state.

Arguments of the Parties

Plaintiffs’ Arguments

• South Africa may be the natural forum, but effective prosecution there is impossible: public legal aid for personal-injury claims has been withdrawn, contingency-fee funding is practically unavailable, and no other realistic financial support exists.
• Complex scientific, medical and documentary evidence requires experienced representation and experts; without funding in South Africa the Plaintiffs would be denied any trial, violating the second stage of Spiliada.
• English group-action procedures are established and efficient; South Africa lacks comparable mechanisms, heightening cost, delay and risk.
• Under Article 2 of the Brussels Convention, an English-domiciled defendant cannot obtain a stay.

Defendant’s Arguments

• South Africa is overwhelmingly the more appropriate forum: the alleged exposure, majority of Plaintiffs, relevant medical evidence, and potential third-party wrongdoers are all located there.
• The company has formally undertaken to submit to South-African jurisdiction, rendering that forum “available.”
• Plaintiffs never sought South-African legal aid and have made no serious attempt to obtain contingency-fee representation; South-African lawyers would act if claims were meritorious.
• Any funding deficit is a mere procedural disadvantage insufficient to defeat a stay under Spiliada.
• Public interest favours trial in South Africa, where the alleged harm occurred.

Table of Precedents Cited

Court's Reasoning and Analysis

The House applied the Spiliada two-stage test.

Stage One – Appropriate Forum. The vast majority of factual and medical issues, witnesses, and potential third parties are located in South Africa. On that basis, South Africa is “clearly and distinctly” the more natural forum. The Court accepted the lower courts’ finding on this point.

Stage Two – Interests of Justice. The critical question was whether substantial justice could be obtained in South Africa. After reviewing extensive affidavits and documentary evidence, the House found:

• Legal aid for personal-injury litigation has been withdrawn in South Africa, and contingency-fee arrangements are practically unavailable for a case of this magnitude.
• No South-African law firms possess the resources to finance multi-year group litigation involving thousands of claimants and extensive expert evidence.
• Expert medical and scientific testimony, indispensable to the claims, could not be funded or secured without upfront finance.
• South-African procedural law lacks established mechanisms for large-scale group actions, increasing cost, delay, and risk, and further deterring potential funders.
• Consequently, if the stay were upheld, the Plaintiffs would almost certainly be unable to prosecute their claims at all, amounting to a denial of justice.

The Court considered but rejected ancillary arguments:

• The Defendant’s undertaking to submit to South-African jurisdiction made that forum “available”; the timing of the undertaking was neutral.
• Public-policy arguments unrelated to the parties’ private interests are irrelevant to the Spiliada analysis.
• Article 6 of the European Convention on Human Rights added nothing beyond the domestic test: if justice cannot be obtained abroad, a stay must be refused.
• The applicability of Article 2 of the Brussels Convention need not be decided because the stay was lifted on common-law principles; if necessary, a reference to the Court of Justice would have been appropriate.

Holding and Implications

Holding: the House of Lords dismissed Company A’s appeal, allowed the Plaintiffs’ appeal, and removed the stay. The litigation will proceed in England.

Implications: The decision confirms that, under the second stage of Spiliada, a stay must be refused where the claimant demonstrates by cogent evidence that the alternative forum cannot provide the financial and procedural means necessary for a fair trial. Lack of legal representation, funding, or viable group-action procedures can, in exceptional cases, override an otherwise stronger connection to a foreign forum. No new rule regarding Article 2 of the Brussels Convention was established.