A High Court judge has looked behind the corporate veil to rule that it is ‘at the very least arguable’ that a company registered under the laws of South Africa is nevertheless ‘domiciled’ in England and may be sued in this country.
In a personal injury group action, Anglo American South Africa Ltd. (AASA) is being sued in England by more than 1,000 claimants who were employed in the gold mines of South Africa and claim to have contracted silicosis as a result of negligence.
AASA, which is incorporated under the laws of South Africa, has applied to the High Court for a declaration that the courts of England and Wales have no jurisdiction to hear the claims against it.
However, after a preliminary hearing relating to pre-trial disclosure of documents, Mr Justice Silber has accepted that it is arguable that, although AASA’s ‘statutory seat’ is in South Africa, the ‘central administration’ of the company is located in England and that the company is ‘domiciled’ here.
AASA holds assets valued at approximately £6.5 billion which makes up roughly 40% of the worldwide assets of the multi-national Anglo American Group. AASA is an indirectly wholly-owned subsidiary of Anglo American Plc. (AA) which is registered in England.
AASA’s board of directors is largely based in South Africa, where board meetings are held, and the judge noted that it is a separate company from AA, which has its headquarters office in London.
However, the judge accepted the claimant’s plea that the extent of AA’s influence and control over AASA’s executive decision-making is such that the latter is arguably domiciled in England and comes under the jurisdiction of the English courts.
The judge ruled: ‘There are a number of factors which cumulatively satisfy me that the claimants have at the very least an arguable case that London, as the headquarters of AA, is the place where management entrepreneurial decisions relating to AASA’s business are taken.’
Mr Justice Silber emphasised that his preliminary view was based on the evidence currently before him but directed AASA to disclose to the claimants ‘appropriate documents’ relevant to the jurisdictional issue which will now be considered at a full High Court hearing.