Conflict of laws

Availability of forum - personal injury litigation by South African claimants - defendant English company with South African subsidiaries - funding unavailable in South Africa - English proceedings not to be stayed

Lubbe v Cape Plc and related appeals: HL (Lord Bingham of Cornhill, Lord Steyn, Lord Hoffmann, Lord Hope of Craighead and Lord Hobhouse of Woodborough): 20 July 2000

In a personal injury action begun in England, five South African claimants claimed damages against the defendant, an English company, for asbestos-related injury and death arising from the commercial activities of its wholly owned subsidiaries in South Africa.

The defendant's application for a stay was granted but refused on appeal, and thereafter more than 3,000 claimants commenced actions in England against the defendant in respect of similar claims.

The actions were ordered to proceed as a group action and on the defendant's application the judge, concluding that South Africa was the more appropriate forum, stayed all proceedings.

His decision was affirmed on appeal, the Court of Appeal concluding that its decision was supported by considerations of public policy (see [1999] Gazette, 17 December, 39).

The defendant appealed against the decision of the first Court of Appeal and the claimants appealed against that of the second Court of Appeal.

Michael Beloff QC, Lord Brennan QC, Graham Read and Nicholas Khan (instructed by Leigh Day & Co) for the claimants.

Brian Doctor QC, Charles Gibson, Richard Coleman and Alan Dashwood (instructed by Davies Arnold Cooper) for the defendant.

Held, dismissing the defendant's appeal and allowing the claimants' appeal, that, as presented to the first Court of Appeal, its assessment of the balance between the issues relating to the defendant's responsibility and the personal injury issues was not wrong; that the enhanced significance of the latter issues after the later actions commenced tipped the balance in favour of South Africa as the more appropriate forum; but that, given the need for expert evidence and for professional lawyers in preparing and presenting each case and, since funding was likely to be unavailable in South Africa, lack of means there to prosecute the claims would amount to a denial of justice; and that, accordingly, no stay should be granted; further that the court should leave out of account considerations of public interest which could not be related to the private interests of any of the parties or to securing the ends of justice.