transnational litigation claims against uk based multinationals by fiona gill

TRANSNATIONAL LITIGATION

CLAIMS AGAINST UK BASED MULTINATIONALS

by Fiona Gill

ESTABLISHING JURISDICTION

• Brussels Convention (Article 2) 1968

• Spilida v. Cansulex

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

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

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”

• Ngcobo and Others v. Thor Chemicals Ltd

• Connelly v. RTZ

• Lubbe/Afrika and Others v. Cape plc

• Sithole v. Thor Chemicals Limited

NGCOBO AND OTHERS v. THOR CHEMICALS

LIMITED• 1987 Thor transfer mercury

processing operation from Kent to South Africa

• 1992 SA investigation into mercury poisoning

• 1994/5 Thor/Directors prosecuted in South Africa

• 1994 Writ served in England

• April 95 High Court refuses Thor’s application to stay on grounds of forum non conveniens

• 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

CONNELLY

• 1977-82 Employed by Rossing Uranium mine in Namibia

• 1986 Laryngeal cancer diagnosed

• 1988 Instructs solicitors in Scotland

• 1992 Namibian application for Workmens compensation

rejected

• 1993/94 English solicitors instructed, legal aid obtained

• Sept 1994 Writ issued and served with Statement of Claim

• Oct 1994 Defendants applied to stay

• Feb 1995 High Court imposed stay

• 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

• 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

LUBBE v. CAPE PLC

“control of the Company’s worldwide asbestos business in England and failure to reduce

asbestos exposures to a safe level”

• 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

• 11/01/99 Defence served

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

• 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

THE FUTURE

Motivation:

• defunct or bankrupt subsidiaries

• Workmens compensation

• group actions

• higher damages in England

• legal aid, conditional fees

• human rights