Anglo American: a right to sue in the UK as well as in South Africa?

16 July 2012 by

Flatela Vava et al v. Anglo American South Africa Ltd [2012] EWHC 1969 (QB)  16 July 2012, Silber J read judgment

Back to the problem of when and where you can sue various members of a group of companies. In the Cape case (for which see my post), a parent company was held liable for failing to ensure that its subsidiary properly managed the risks posed by asbestos. In this case of Vava, the claimants wanted to sue a South African registered holding company (AASA) in the UK, on the basis that the real decisions were taken in the UK, and hence AASA were domiciled in the UK for purposes of suing them.

The case came before Silber J, on an application by the claimants for documents relevant to this jurisdictional issue. AASA resisted, on the basis that there was not a good arguable case that it could be sued in England, and therefore it did not have to produce the documents relevant to this issue.

The underlying actions were brought in England by gold miners who had contracted silicosis as a result of their employment with AASA in South Africa, as well as by someone who alleged clinical negligence against AASA company doctors there. In each case, they could only do so if AASA was domiciled in England. “Domicile” is defined for these purposes in Article 60 of the EU Brussels I Regulation as being any of

(a) the statutory seat (which is in South Africa)

(b) “central administration” and

(c) principal place of business.

Argument focussed around (b).

The key company structure was this. Anglo American PLC (AA plc)  is registered in England. It is the ultimate parent of AASA. AASA’s assets in South Africa are worth approximately £6.5 billion, and these constitute about 40% of the worldwide assets of AA plc. AASA has its own board of directors who are largely based in South Africa. Another AA company provided company secretarial, executive director, and financial performance management services in South Africa. But this, said, the claimants, was far from the full story. AA plc made the policy and strategic decisions which AASA then implemented. The claimants pointed to various AA plc committees such as the Group Management Committee and Executive Committee which, they said, played a significant part in deciding the line which AASA was to take. By contrast, it was said, the AASA board met insufficiently frequently to make the real decisions to guide this multi-billion pound enterprise.

Did all this matter? In particular, what is meant by the phrase “central administration” in Article 60 of the Brussels I Regulation? Silber J, after a review of domestic and German case law and EU-wide academic writings, concluded

43. It is common ground that there is no authoritative ECJ decided case or cases on the meaning of the term “central administration”, but the writings to which I have referred….. support Mr. Layton’s case, which suggests that the “central administration” of a company is where decisions are made; and where the entrepreneurial management takes place. The decisions in the cases to which I have referred are also broadly supportive of this approach which also means that the place of central administration is not simply where a company’s Board meetings and AGMs are held. So I am quite satisfied that the claimants have at least an arguable case that the “central administration” of a company is where management decisions are taken and where entrepreneurial decisions take place irrespective of where its economic activities occur.

Having taken this approach, it was not difficult for the judge to decide that it was well arguable that the entrepreneurial management took place in England. This was on the basis that London, as the headquarters of AA plc, was the place where such decisions relating to AASA were taken.

This is interesting, revealing and important. A SA corporation was having its domiciled determined, not by reference to where it’s (AASA’s)  business was carried out, but where the decisions (by its parent) were taken which led how that business was carried out. So the Regulation, thus interpreted, was looking to the economic reality of the relationship, rather than the way in which things had been structured, doubtless for tax and other reasons. But beware – the decision, despite its considerable learning, only decides that the claimants’ point is properly arguable. Anyway, it may not rest where it is. A further action, involving 1106 claimants, sits in the wings awaiting the result. So do not assume that this multi-national £6.5bn defendant will take this reverse lying down.

Sign up to free human rights updates by email, Facebook, Twitter or RSS

Related posts


  1. The Engineer says:

    Presumably a decision as to domicile is not exclusive, i.e. AASA is domiciled also in South Africa and could be sued there?

    1. That’s right. They can be sued in SA on the basis of their “seat” being there, and it also being AASA’s principal place of business.

Comments are closed.

Welcome to the UKHRB

This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates

Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.




Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals Anne Sacoolas anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery British Waterways Board care homes Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Commission on a Bill of Rights common law communications competition confidentiality consent conservation constitution contact order contact tracing contempt of court Control orders Copyright coronavirus coronavirus act 2020 costs costs budgets Court of Protection covid crime criminal law Cybersecurity Damages data protection death penalty defamation DEFRA deportation deprivation of liberty derogations Detention Dignitas diplomacy diplomatic relations disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Equality Act 2010 Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice evidence extradition extraordinary rendition Facebook Facial Recognition Family Fatal Accidents Fertility FGM Finance foreign criminals foreign office foreign policy France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage gay rights Gaza Gender genetics Germany Google Grenfell Gun Control Harry Dunn Health HIV home office Housing HRLA human rights Human Rights Act human rights news Human Rights Watch Huntington's Disease immigration India Indonesia injunction Inquests insurance international law internet inuit Iran Iraq Ireland islam Israel Italy IVF ivory ban Japan joint enterprise judaism judicial review Judicial Review reform Julian Assange jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid legal aid cuts Leveson Inquiry lgbtq liability Libel Liberty Libya lisbon treaty Lithuania local authorities marriage Media and Censorship mental capacity Mental Capacity Act Mental Health military Ministry of Justice modern slavery morocco murder music Muslim nationality national security naturism neuroscience NHS Northern Ireland nuclear challenges nuisance Obituary ouster clauses parental rights parliamentary expenses scandal patents Pensions Personal Injury physician assisted death Piracy Plagiarism planning planning system Poland Police Politics Pope press prison Prisoners prisoner votes Prisons privacy procurement Professional Discipline Property proportionality prosecutions prostituton Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries quarantine Radicalisation rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania round-up Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials sexual offence shamima begum Sikhism Smoking social media social workers South Africa Spain special advocates Sports Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance sweatshops Syria Tax technology Terrorism The Round Up tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal credit universal jurisdiction unlawful detention USA US Supreme Court vicarious liability Wales War Crimes Wars Weekly Round-up Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: