## Facts

- Thousands of mostly South African residents sued Cape plc, an English parent company, for asbestos-related personal injuries and deaths arising from exposure in South Africa before 1979.
- The claimants alleged Cape owed them a direct tort duty of care, based on Cape’s role and control regarding health and safety standards at its South African subsidiaries.
- Proceedings were brought in England; Cape sought a stay on forum non conveniens grounds, arguing South Africa was the proper forum and that the English multi-party structure was an abuse of process.
- The High Court stayed the claims in favor of South Africa; an initial appellate ruling lifted the stay, but after additional claims were added and treated as a group action, the High Court and Court of Appeal again stayed all proceedings.
- The House of Lords heard interlocutory appeals on whether the English actions should proceed or be stayed.

## Issues

1. Whether the English proceedings should be stayed under the forum non conveniens analysis because South Africa was the more appropriate forum.
2. Whether a stay should nevertheless be refused because trying the case in South Africa posed a real risk of denying the claimants substantial justice due to practical barriers to litigating.
3. Whether Article 2 of the Brussels Convention constrained an English court’s power to stay proceedings brought against an English-domiciled defendant in favor of a non-Convention forum.

## Decision

- The House of Lords held that South Africa was, based on connecting factors, the natural and more appropriate forum for trial.
- The House of Lords unanimously refused a stay because there was a real risk the claimants could not obtain substantial justice in South Africa.
- The House accepted evidence that, given the scale and complexity of the litigation, claimants were unlikely to secure workable legal representation and funding in South Africa and lacked effective multi-party procedures to litigate the claims.
- The House held that Article 2 of the Brussels Convention did not remove the English court’s domestic power to stay proceedings in favor of a non-Convention forum.
- The stays were set aside and the actions were permitted to continue in England.

## Legal Principles

- Under the forum non conveniens framework, the court first identifies the more appropriate forum by reference to connecting factors; even if a foreign forum is more appropriate, a stay may be refused if the claimant shows a real risk that substantial justice will not be obtained there.
- “Substantial justice” includes the practical ability to prosecute the claim, including realistic access to legal representation, litigation funding, and procedures capable of managing complex multi-party disputes.
- In assessing a claimed denial of justice, the court may consider whether the foreign forum’s funding mechanisms and procedural tools make it highly improbable that the claim can be tried in practice.
- An English parent company may, in principle, owe a direct duty of care in tort concerning health and safety in the operations of overseas subsidiaries; whether such a duty exists depends on fact-specific inquiry into the parent’s knowledge, control, and conduct.
- The Brussels Convention’s allocation rules among contracting states do not, by themselves, preclude an English court from considering a forum non conveniens stay in favor of a non-Convention forum.

## Conclusion

Although South Africa was the natural forum on ordinary connecting factors, the House of Lords allowed the claims to proceed in England because sending the claimants to South Africa created a real risk of denying substantial justice due to the practical unavailability of funding, representation, and effective multi-party procedures for litigation of this scale.


Lubbe v. Cape PLC, [2000] 1 W.L.R. 1545 (H.L.)