TRANSNATIONAL LITIGATION

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TRANSNATIONAL LITIGATION

• CLAIMS AGAINST UK BASED MULTINATIONALS
• by Fiona Gill

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ESTABLISHING JURISDICTION

• Brussels Convention (Article 2) 1968
• Spilida v. Cansulex

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DUTY OF CARE

• It is suggested that provided there is
  sufficient involvement in control over and
  knowledge of the subsidiary operations by the
  parent, there is no reason why the general
  principles of negligence should not apply so that
  in certain circumstances such a duty should
  exist.
• Leigh Day Co Nov 1999

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AUSTRALIAN CASES

• CSR Ltd v. Wren
• Asbestos Products plc Ltd (AP) was wholly named
  subsidiary of CSR
• All AP directors were employees of CSR
• All management staff were employees of CSR
• CSR board meetings regularly reviewed AP business

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CSR LIMITED - WREN

• CSR board approved acquisitions of plant and
  other items by AP
• a close involvement over and above that
  expected in the case of a holding company

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• Ngcobo and Others v. Thor Chemicals Ltd
• Connelly v. RTZ
• Lubbe/Afrika and Others v. Cape plc
• Sithole v. Thor Chemicals Limited

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NGCOBO AND OTHERS v. THOR CHEMICALS LIMITED

• 1987 Thor transfer mercury processing
  operation from Kent to South Africa
• 1992 SA investigation into mercury poisoning

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• 1994/5 Thor/Directors prosecuted in South
  Africa
• 1994 Writ served in England
• April 95 High Court refuses Thors
  application to stay on grounds of forum
  non conveniens

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• May 1995 Defence served
• July 1995 Writ served on behalf of further 17
  Plaintiffs
• April 1997 Ngcobo claims settled for 1.3m
• October 2000 Sithole v. Thor

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CONNELLY

• 1977-82 Employed by Rossing Uranium mine in
  Namibia
• 1986 Laryngeal cancer diagnosed
• 1988 Instructs solicitors in Scotland

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• 1992 Namibian application for Workmens
  compensation rejected
• 1993/94 English solicitors instructed, legal
  aid obtained

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• Sept 1994 Writ issued and served with
  Statement of Claim
• Oct 1994 Defendants applied to stay
• Feb 1995 High Court imposed stay

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• Aug 1995 Court of Appeal upholds decision
  legal aid cannot be taken into account
• Oct 1995 High Court rejected application to
  lift stay
• May 1996 Court of Appeal held conditional
  fee agreement a material change of
  circumstances and lifted stay

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• Aug 1997 Court of Appeal upheld by House of
  Lords
• Oct 1997 Defence served
• Jan 1999 Claim struck out as time barred,
  leave to appeal refused

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LUBBE v. CAPE PLC

• control of the Companys worldwide asbestos
  business in England and failure to reduce
  asbestos exposures to a safe level

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• Feb 1997 Writ issued Lubbe and 4 others
• Mar 1997 Application to stay
• Jan 1998 High Court stayed proceedings
• July 1998 Court of Appeal lifted stay

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• 11/01/99 Defence served
• 18/01/99 Afrika Writ 1539 Claimants further
  Writs served

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• July 1999 High Court stays South Africa is
  the most appropriate forum
• October 1999 Court of Appeal upholds the stay
  (High Court and Court of Appeal criticise
  Claimants solicitors tactics)
• July 2000 House of Lords allows Claimants
  appeal

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THE FUTURE

• Motivation
• defunct or bankrupt subsidiaries
• Workmens compensation
• group actions
• higher damages in England
• legal aid, conditional fees
• human rights