Vava v Anglo American South Africa Ltd1(Vava) Jessica Margaret Young v Anglo American South Africa Ltd2(Young)3
The High Court recently clarified the meaning of "central administration" in relation to establishing a company’s domicile under the EU Brussels I Regulation (the Brussels Regulation), and therefore the jurisdiction in which a claim may be brought against a company.
This case involved two jurisdictional applications, heard together, arising from different actions against Anglo American South Africa Ltd (AASA), a South African registered company. Both actions involved personal injury claims against AASA arising from activities carried out in South Africa or Botswana for which the claimants in each action alleged AASA was responsible.
In Vava, the claimants alleged that they had contracted silicosis during their employment in gold mines in South Africa operated by companies controlled and advised by AASA.
Young concerned a claim for damages for clinical negligence against AASA’s company doctors. The claimant alleged that the mine hospital’s doctors in Botswana had failed to diagnose a metabolic disorder, and that this failure had led to significant brain damage which could have been avoided if diagnosis had been made promptly at birth.
The claimants in both actions were seeking to sue AASA in England on the basis that AASA’s central administration was in England and that it was therefore domiciled in England for the purposes of the Brussels Regulation. AASA sought declarations from the English High Court that the court had no jurisdiction to hear either claim.
Article 2 of the Brussels Regulation provides that "persons domiciled in a Member State shall whatever their nationality, be sued in the courts of that Member State". Article 60 provides that a company is domiciled in the place where it has its:
- statutory seat, or
- central administration, or
- principal place of business.
At an earlier hearing, Mr Justice Silber had indicated that the claimants would not have a good arguable case that AASA’s principal place of business was in England. The only issue which therefore fell to be determined in this application was whether AASA’s central administration was in England.
Standard of proof
There was a divergence of views between the parties in relation to the applicable test to establish whether the claimants had demonstrated that the defendant was domiciled in England. The judge preferred the defendants’ submissions that the standard was whether the claimants had shown "a good arguable case".
Article 60 of the Brussels Regulation and Central administration
The claimants’ principal argument was that the meaning of central administration under Article 60 of the Brussels Regulation was uncertain and that the court should request a ruling from the European Court of Justice (ECJ). Their secondary submission was that, in the light of European jurisprudence, on a proper interpretation of Article 60, the place where a company has its central administration is the place where its major decisions are taken, or where the "main entrepreneurial decisions are taken which determine the activity of the company". They submitted that the place of central administration is not therefore simply the location of a company’s board and of general meetings, but where the "people who devise the company’s strategy and who take the big picture decisions are located".
The claimants alleged that whilst the defendant was a South African company, its central administration was in England. They relied solely on the fact that AASA was a wholly owned subsidiary of an English company, Anglo American plc (AA). The claimants suggested that AA made the strategic and policy decisions which AASA implemented. They argued that this indicated that AA had usurped the governance functions of AASA, or that AASA had delegated these functions to AA. AASA had no employees and conducted no business of its own. However, it had control, through share ownership, over companies incorporated and operating in South Africa. The claimants also suggested that the board of AASA met infrequently and irregularly, which they said was a further indication that the central administration was in England by virtue of AA.
The judge summarised the claimants’ central argument as being that the principal function of AASA was to "hold shares in the group’s South African companies and be the vehicle through which the group implemented its strategy in South Africa". The judge noted that it was not argued by the claimants, nor could it be cogently argued, that the central administration of a wholly owned subsidiary would always be located with its shareholder, but the claimants contended that in this case, they had sufficient argument that it was.
In deciding the case, the judge reviewed a number of European and English authorities in relation to the meaning of "central administration".
The judge noted that in R v HM Treasury, ex p Daily Mail and General Trust plc4, the ECJ treated the concept of "central administration" as equivalent to "central management and control". He also referred to text from a book by Dr Ulrich Everling5, which was cited in R v HM Treasury:
"The central administration is located where the company organs take the decisions that are essential for the company operations".
The judge noted that whilst the frequency and regularity of a company’s board meetings may, in some circumstances, be an indication that the parent company has usurped control, in certain situations, such as this one, the limited number of board meetings were in fact sufficient for the limited business carried out by the company.
The claimants also suggested that AA would be concerned to ensure that the correct decisions are taken in relation to the assets of its subsidiary AASA. The judge noted that to some degree, this would be true of any relationship between a parent and a subsidiary.
In addition, it was suggested by the claimants that AA influenced, or determined, the decisions of AASA. The judge drew a distinction between a parent company influencing decisions and it determining decisions finding that here there was no evidence to suggest that AA did any more than influence the decisions of AASA. The claimants further pointed to the fact that AA, through other entities, was responsible for the overall management of the group and its long term strategies and objectives. However, the judge noted that this was unsurprising and not indicative that AA had usurped control of AASA, or that AASA had delegated its functions to AA.
The judge concluded that whilst the English courts have recognised that there are circumstances where a parent company has usurped the function of control over the subsidiary, the courts do not readily conclude that. Furthermore, he noted that he was unable to accept the claimants’ argument that a company’s central administration is where the "main entrepreneurial decisions" are taken. He clarified the test for central administration as being "where the company itself carries out its functions… and unless the company can properly be said to be acting through another person or entity because of agency or delegation, then the actions of others do not determine the question."
The judge summarised his findings on the proper interpretation of Article 60 of the Brussels Regulation as follows:
"Article 60 (1) (b) is about where it [a company] carries out functions, not about where others carry out functions that affect it."
The judge did not deem it necessary to make a reference to the ECJ for clarification of the meaning of central administration under Article 60. Whilst he accepted the claimants’ argument that some English first instance decisions did not take into account European jurisprudence, he did not consider that there was real uncertainty as to the meaning of Article 60.
This judgment serves as a useful clarification of the meaning of central administration in the context of a company’s domicile for the purposes of the Brussels Regulation, and specifically in relation to the court’s approach where a company is registered abroad but where there is influence by a parent company in England.