Lubbe v Cape plc
Proceedings by thousands of South African asbestos victims against an English parent company were not stayed, because the lack of legal aid and expert evidence in South Africa meant that they would be denied substantial justice there.
Facts
Thousands of South African claimants, who had suffered asbestos related diseases as a result of working in or living near asbestos mines and mills in South Africa operated by subsidiaries of Cape plc, an English company, sued Cape in England. They alleged that Cape, as the parent company, was negligent in failing to ensure that proper safety precautions were taken. Cape applied for a stay on the ground that South Africa was the more appropriate forum.
Legal principle
The House of Lords refused a stay. Lord Bingham accepted that South Africa was, on the face of it, the more appropriate forum, because the claimants lived there and the events had occurred there. However, applying the second stage of the Spiliada test, the claimants would be denied substantial justice if they had to bring their claims in South Africa, because no legal aid or other funding would be available there for such complex group litigation, and they would be unable to obtain the expert evidence needed to prove their claims. Considerations of public interest, such as the effect on South African policy, were not relevant. The case was later settled.
Related cases on jurisdiction and forum non conveniens
- Altimo Holdings and Investment Ltd v Kyrgyz Mobil Tel Ltd [2011] UKPC 7, [2012] 1 WLR 1804
- Connelly v RTZ Corp plc [1998] AC 854
- Erich Gasser GmbH v MISAT Srl Case C-116/02, [2003] ECR I-14693
- FS Cairo (Nile Plaza) LLC v Brownlie [2021] UKSC 45, [2022] AC 995
- Okpabi v Royal Dutch Shell plc [2021] UKSC 3, [2021] 1 WLR 1294
- Owusu v Jackson Case C-281/02, [2005] ECR I-1383
- Provimi Ltd v Aventis Animal Nutrition SA [2003] EWHC 961 (Comm)
- Shevill v Presse Alliance SA Case C-68/93, [1995] ECR I-415
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