## Facts

- Englebert Ngcobo, Albert Dlamini, and Makhaladi Cele worked for several months at a mercury plant in Cato Ridge, Natal, South Africa, and alleged they were exposed to hazardous levels of mercury.
- Ngcobo became seriously ill soon after working at the plant, was hospitalized, and later died; proceedings in England were brought on behalf of his estate by his widow.
- The claim in England was brought against Thor Chemicals (including the UK parent company, described in sources as Thor Chemicals Holdings Ltd) and other related defendants associated with the Thor group.
- The plaintiffs alleged the defendants’ negligence caused the dangerous mercury exposure and resulting injuries and death.
- The defendants applied to stay (or dismiss) the English proceedings on forum non conveniens grounds, contending that South Africa was the proper forum because the work, exposure, and much of the evidence were located there.
- The plaintiffs resisted a stay, arguing that if required to sue in South Africa there was a serious risk that they would be unable to bring the claims effectively (including due to funding and representation problems), so that substantial justice would not be obtained.

## Issues

1. Whether the English High Court should stay the negligence action on forum non conveniens grounds in favor of litigation in South Africa.
2. If South Africa was otherwise the more appropriate forum, whether there was a real risk that the plaintiffs would not obtain substantial justice there, such that the English court should refuse a stay.

## Decision

- Stewart J refused the defendants’ application for a stay and allowed the action to proceed in England.
- The court concluded that dismissing or staying the English proceedings would create a grave danger that justice might not be done for the plaintiffs in South Africa, so a stay was not appropriate.

## Legal Principles

- Under English forum non conveniens analysis, a court may stay proceedings when the defendant shows another available forum is clearly or distinctly more appropriate for trial.
- Even where another forum appears to be the natural forum, a stay should be refused if the claimant shows a real risk that substantial justice will not be obtained in that forum.
- In assessing “substantial justice,” the court may consider practical barriers to bringing the claim in the alternative forum, including the ability to obtain suitable legal representation and funding for complex, expensive litigation.
- Where proceedings are brought against a UK-based parent company in negligence for harm suffered abroad, the court may retain the case if it is satisfied that transferring the dispute would likely prevent a fair trial or effective access to a remedy.

## Conclusion

The High Court of Justice (QBD) refused to stay the English proceedings brought by South African mercury-plant workers (and Ngcobo’s estate) against Thor Chemicals and related defendants, holding that requiring the plaintiffs to litigate in South Africa carried a grave danger that they would not obtain substantial justice, so the claims could continue in England.


Englebert Ngcobo v. Thor Chemicals, No. 1994 N 1212 (1995)