"…hearings concerning the issue of appropriate forum should not involve masses of documents, long witness statements, detailed analysis of the issues, and long argument. It is self-defeating if, in order to determine whether an action should proceed to trial in this jurisdiction, the parties prepare for and conduct a hearing which approaches the putative trial itself, in terms of effort, time and cost."
"Thus a claimant has to demonstrate that both threshold requirements are met. At the first stage under paragraph 3.1(3)(a), the court has to examine the nature of the claim which arises against the anchor defendants in isolation; that is to say on the assumption that there will be no additional joinder of the foreign defendants. The court has to be satisfied that not only is there 'a real issue' between the claimant and the anchor defendants, but also that it is an issue 'which it is reasonable for the court to try'."
"Indeed this is one of a series of overseas tort claims brought by the Claimants' law firm in which novel claims are asserted against UK domiciled parents or (in this case) holding companies, in order to bring fundamentally foreign claims into the jurisdiction in which the Claimants' law firm is admitted to practice….. It is a further essential part of the business model for the Claimants' lawyers to persuade the Court that other legal systems are inferior. This draws the court into risking making damaging colonialist judgments based on inappropriate comparisons between one judicial system and another. In fact, many oil spill cases have been pursued and are on foot in Nigeria including by Claimants from these communities…… Allegations of the existence of a risk that justice will not be done in a foreign sovereign state have been advanced in the course of the last few months in the Vedanta litigation in relation to Zambia, in these two claims in relation to Nigeria and, it is understood, in the Unilever litigation in relation to Kenya. It is notable that these assertions are being advanced by the same firm of solicitors in relation to three very different sovereign states. The Court is invited to note the generalised nature of the allegations advanced in the current proceedings; it is submitted that the fact that such allegations appear to be capable of being made with such apparent frequency and ease serves to underline the importance of Lord Collins's warnings as to the need both for extreme caution on the part of the Court when considering such allegations and of cogent evidence in relation to such allegations….."
" The plaintiff's solicitors have made all the dispositions and incurred all the expense for the trial of one action in England; they have engaged English counsel and educated them in the various topics upon which expert evidence will be called; they have engaged English expert witnesses; and they have assembled vast numbers of documents. They have also, no doubt, educated themselves upon the issues in the action "
" It is agreed between the experts that, although English decisions are not part of Nigerian law and not binding on Nigerian courts, they are nevertheless of highly persuasive value, and that, in the instant case, the two relevant authorities on the issue of what would qualify for the exception to s.159 provided for in s.159(3)(a) [of the Nigerian Companies and Allied Matter Act] would be followed by the Nigerian courts "
" Service out of the jurisdiction where permission is required: 3.1 The claimant may serve a claim form out of the jurisdiction with the permission of the court under rule 6.36 where – (1) …. (2) …. (3) A claim is made against a person ('the defendant') on whom the claim form has been or will be served (otherwise than in reliance on this paragraph) and – (a) there is between the claimant and the defendant a real issue which it is reasonable for the court to try; and (b) the claimant wishes to serve the claim form on another person who is a necessary or proper party to that claim."
"Subject to the Regulation, persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State."
"41. Application of the forum non conveniens doctrine, which allows the court seised a wide discretion as regards the question whether a foreign court would be a more appropriate forum for the trial of an action, is liable to undermine the predictability of the rules of jurisdiction laid down by the Brussels Convention, in particular that of article 2, and consequently to undermine the principle of legal certainty, which is the basis of the Convention. 42. The legal protection of persons established in the Community would also be undermined. First, a defendant, who is generally better placed to conduct his defence before the courts of his domicile, would not be able, in circumstances such as those of the main proceedings, reasonably to foresee before which other court he could be sued. Second, where a plea is raised on the basis that a foreign court is a more appropriate forum to try the action, it is for the claimant to establish that he will not be able to obtain justice before that foreign court or, if the court seised decides to allow the plea, that the foreign court has in fact no jurisdiction to try the action or that the claimant does not, in practice, have access to effective justice before that court, irrespective of the cost entailed by the bringing of a fresh action before a court of another state and the prolongation of the procedural time limits. … 44. The defendants in the main proceedings emphasise the negative consequences which would result in practice from the obligation the English courts would then be under to try this case, inter alia as regards the expense of the proceedings, the possibility of recovering their costs in England if the claimant's action is dismissed, the logistical difficulties resulting from the geographical distance, the need to assess the merits of the case according to Jamaican standards, the enforceability in Jamaica of a default judgment and the impossibility of enforcing cross-claims against the other defendants. 45. In that regard, genuine as those difficulties may be, suffice it to observe that such considerations, which are precisely those which may be taken into account when forum non conveniens is considered, are not such as to call into question the mandatory nature of the fundamental rule of jurisdiction contained in article 2 of the Brussels Convention, for the reasons set out above. 46. In the light of all the foregoing considerations, the answer to the first question must be that the Brussels Convention precludes a court of a contracting state from declining the jurisdiction conferred on it by article 2 of that Convention on the ground that a court of a non-contracting state would be a more appropriate forum for the trial of the action, even if the jurisdiction of no other contracting state is in issue or the proceedings have no connecting factors to any other contracting state."
"Even if it were otherwise desirable, this court could not stay the proceedings against them (See Article 2 of the Judgments Regulation and Owusu v Jackson[2005] QB 801 ". (2) In Attorney General of Zambia v Meer Care & Desai (A Firm) [2006] 1 CLC 436 Sir Anthony Clarke MR (as he then was) stated: "…a number of the defendants, including the first, second, fifth, eighth and twelfth defendants, are domiciled in a state which is a party to the Conventions the terms of which are now set out in Council Regulation EC 44/2001, which has the force of law in England. The effect of the decision of the European Court of Justice in Owusu v Jackson (Case C-281/02 ) [2005] 1 CLC 246 is that the English court could not grant a stay of proceedings against those defendants in favour of a court in a state which is not a party to a relevant convention, including Zambia. In any event, none of the defendants other than the appellants applied for a stay." (3) In UBS AG v HSH Nordbank[2009] 2 Lloyds Rep 272 , Collins LJ (as he then was) said: "103. The prevailing view is that there is no scope for the application of forum conveniens to remove a case from a court which has jurisdiction under the Regulation, even as regards a defendant who is not domiciled in a Member State…" (4) In AvA (Children: Habitual Residence )[2014] AC 1 , Baroness Hale stated the following: "31. In Owusu v Jackson (Case C-281/02 )[2005] QB 801 , the Court of Justice of the European Communities held that the rule in article 2 of the Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Measures 1968, which required that "persons domiciled in a contracting state shall, whatever their nationality, be sued in the courts of that state", meant that the courts of that state had to assume jurisdiction, even though there was a third country which also had jurisdiction and even though that country was, on the face of it, the more appropriate forum in which to bring the action. Thus the English court was not only empowered but obliged to assert and exercise jurisdiction rather than leave the parties to the jurisdiction of a state (Jamaica) which was not party to the Convention."
"the fact that the law does not impose liabilities upon companies in respect of the acts or omissions of other companies in the same group simply by reason of their common membership of the same group does not mean that circumstances cannot arise where in more than one company in the same group each incurs liabilities in respect of damage caused to a particular plaintiff. "
"The issues in the present cases fall into two segments. The first segment concerns the responsibility of the defendant as a parent company for ensuring the observance of proper standards of health and safety by its overseas subsidiaries. Resolution of this issue will be likely to involve an inquiry into what part the defendant played in controlling the operations of the group, what its directors and employees knew or ought to have known, what action was taken and not taken, whether the defendant owed a duty of care to employees of group companies overseas and whether, if so, that duty was broken."
"80. In summary, this case demonstrates that in appropriate circumstances the law may impose on a parent company responsibility for the health and safety of its subsidiary's employees. Those circumstances include a situation where, as in the present case, (1) the businesses of the parent and subsidiary are in a relevant respect the same; (2) the parent has, or ought to have, superior knowledge on some relevant aspect of health and safety in the particular industry; (3) the subsidiary's system of work is unsafe as the parent company knew, or ought to have known; and (4) the parent knew or ought to have foreseen that the subsidiary or its employees would rely on its using that superior knowledge for the employees' protection. For the purposes of (4) it is not necessary to show that the parent is in the practice of intervening in the health and safety policies of the subsidiary. The court will look at the relationship between the companies more widely. The court may find that element (4) is established where the evidence shows that the parent has a practice of intervening in the trading operations of the subsidiary, for example production and funding issues."
"There is no evidence that the Renwick Group Limited at any time carried on any business at all apart from that of holding shares in other companies , let alone that it carried on either a haulage business or, as would in fact be required were the Respondent's case to have a prospect of success, a business an integral part of which was the warehousing or handling of asbestos or indeed any potentially hazardous substance. Thus the first of Arden LJ's indicia is not satisfied. This is no mere formalism, for as the balance of Arden LJ's indicia indicate, what one is looking for here is a situation in which the parent company is better placed, because of its superior knowledge or expertise, to protect the employees of subsidiary companies against the risk of injury and moreover where, because of that feature, it is fair to infer that the subsidiary will rely upon the parent deploying its superior knowledge in order to protect its employees from risk of injury."
"(a) Every claim of this kind requires the claimants to satisfy the three-part test in Caparo v Dickman . (b) Depending on the facts, it is arguable that a claim in negligence against a parent company arising out of the operations of its subsidiary might give rise to liability: Chandler v Cape . (c) For obvious reasons, such a claim is more likely to succeed if advanced by former employees ( Ngcobo , Connelly v RTZ , Chandler v Cape ). However, depending on the facts, claims made by residents, rather than former employees, are still arguable ( Lubbe )."
"10. RDS, as the ultimate holding company of the Shell Group of companies, carries out activities commensurate with this role, including holding shares in its subsidiaries and investments and setting the overall strategy and business principles for the Shell Group of companies. RDS reports on the consolidated performance of the Shell Group of companies, makes appropriate disclosures to the markets, and maintains relationships with investors. It is also responsible for approving changes to the capital and corporate structure of the Shell Group of companies. 11. RDS is a holding company. It is not an operating company. As a holding company, it does not have any employees. A limited range of corporate services are provided by individuals employed elsewhere in the Shell Group of companies from time to time seconded to RDS….. 12. RDS does not involve itself or otherwise intervene in the operational activities of its many hundreds of subsidiaries. As a holding company, it does not have the expertise or capacity to do so…..each operating company is autonomous, with its own properly constituted board of directors, its own management, its own business purpose, its own assets and its own employees appropriate for that purpose. Its board and management take the operational decisions necessary to run its business. Each operating company is responsible and accountable for its operational performance including its Health, Safety, Security, the Environment and Social Performance….. compliance and performance."
"…the theme of all these cases as being that where legal technicalities would produce injustice in cases involving members of a group of companies, such technicalities should not be allowed to prevail. We do not think that the cases relied on go nearly so far as this. As [counsel for Cape] submitted, save in cases which turn on the wording of particular statutes or contracts, the court is not free to disregard the principle of Salomon v A. Salomon & Co Ltd merely because it considers that justice so requires. Our law, for better or worse, recognises the creation of subsidiary companies, which though in one sense the creatures of their parent companies, will nevertheless under the general law fall to be treated as separate legal entities with all the rights and liabilities which would normally attach to separate legal entities."
"[Counsel] suggested beguilingly that it would be technical for us to distinguish between parent and subsidiary company in this context: economically, he said, they were one. But we are concerned not with economics but with law. The distinction between the two is, in law, fundamental and cannot here be bridged."
"Royal Dutch Shell plc and the companies in which it directly and indirectly owns investments are separate and distinct entities. But in this publication, the collective expressions "
"The Claimants contend that RDS exercised a high degree of control and direction over SPDC's environmentally harmful activities, and that RDS had ultimate responsibility for ensuring that SPDC's operations in Ogale and Bille did not cause foreseeable harm to the Claimants. The Claimants allege that, as a result, RDS owed the Claimants a common law duty of care in respect of the oil pollution that caused damage to the Claimants and that it breached that duty of care. In particular, the Claimants contend that RDS failed to ensure that repeated oil leaks from SPDC's infrastructure were expeditiously and effectively cleaned up so as to minimise the risk to the Claimants' health, land and livelihoods. Further, RDS failed to take appropriate measures to address the well-known systemic problems of its operations in Nigeria which led to repeated oil spills. Those systemic problems included inadequate maintenance of equipment, deficient decommissioning of disused infrastructure, operation of faulty equipment, failure to protect pipelines from third party interference and failure to implement adequate systems for detecting leaks and shutting down pipelines."
"VP Global Head M&A and Commercial Finance – Shell…..Member of the Senior Executive Group of Royal Dutch Shell and of the Upstream Africa Leadership team"; and "
"Yet Lord Atkin [in Donoghue v Stevenson ] himself sounds the appropriate note of caution by adding, at p580: 'To seek a complete logical definition of the general principle is probably to go beyond the function of the judge, for the more general the definition the more likely it is to omit essentials or to introduce non-essentials'. After referring to the development of the principle that emerged in Anns v Merton London Borough Council , Lord Bridge continued at 617G: "
"It is preferable, in my view, that the law should develop novel categories of negligence incrementally and by analogy with established categories, rather than by a massive extension of a prima facie duty of care restrained only by indefinably "considerations which ought to negative, or to reduce or limit the scope of the duty or the class of persons to whom it is owed."
"Per Lord Bridge of Harwich, Lord Roskill, Lord Ackner and Lord Oliver of Aylmerton. Whilst recognising the importance of the underlying general principles common to the whole field of negligence, the law has now moved in the direction of attaching greater significance to the more traditional categorisation of distinct and recognisable situations as guides to the existence, the scope and the limits of the varied duties of care which the law imposes."
"However it is noteworthy that at no relevant point in time did Cape cease to be an operating company itself or merely hold the shares in its subsidiaries as if it were an investment holding company."