United Kingdom

United Kingdom

Summary of developments:
  • Chandler v. Cape: Parent company deemed to have a duty of care owned to subsidiary’s employees (2012).
  • Okpabi v. Shell: Court rejected parent company responsibility for damage caused by its subsidiary. Claimants appealed (2016, ongoing).
  • Lungowe v. Vedanta: Court of Appeal upheld a High Court ruling allowing a case brought by Zambian villagers against UK mining firm Vedanta to continue to be heard in UK courts.
  • AAA v. Unilever: Court found that claims against Unilever did not have arguable merit, but helped confirm developing doctrine of parent company liability and jurisdiction of courts over subsidiary. 
  • UK Parliament’s Joint Committee for Human Rights calls for legislation to impose on all companies a duty to prevent human rights abuses (2017).

Case Law

Chandler v. Cape PLC

 

In a nutshell

In more detail

Name of Case

Chandler v. Cape

Chandler v. Cape PLC, [2012] EWCA (Civ) 525

Area of Law

Tort law

Tort Law

Jurisdiction

UK

Both the parent company, Cape PLC, and its former subsidiary Cape Building Products Ltd (dissolved before the proceedings) were companies based in London.

Current Stage

Concluded in 2012

Concluded in 2012, with Court of Appeal’s decision confirming the liability of the parent company, Cape PLC.

Result

Parent company is considered liable for subsidiary’s failure to adopt measures that could have prevented employees' occupational disease.

Parent company is considered to have, on the relavant facts and even in the absence of complete control over the operations of its subsidiary, a duty of care concerning the health and safety conditions of its subsidiary’s employees.

The Court of Appeal upheld the decision of the High Court, confirming that the law may impose a duty of care on a parent company for the health and safety conditions of a subsidiary’s employees, when the following conditions are met:

1. the businesses of the parent and subsidiary are in a relevant respect the same;

2. the parent has, or ought to have, superior knowledge on some relevant aspect(s) of health and safety in the particular industry;

3. the subsidiary's system of work is unsafe as the parent company knew, or ought to have known; and

4. the parent knew or ought to have foreseen that the subsidiary or its employees would rely on its using that superior knowledge for the employees' protection.

One relevant aspect of the decision is that, according to the court, for the purposes of element (4), it is not necessary to show that the parent is "in the practice of intervening" in the subsidiary’s policies in question. Instead, it says, “The court will look at the relationship between the companies more widely. The court may find that element (4) is established where the evidence shows that the parent has a practice of intervening in the trading operations of the subsidiary, for example production and funding issues” (emphasis added).

Personal Scope

Claimant: Former employee of the subsidiary, Cape Products.

Defendant: Parent company, Cape PLC.

 

 

Reach of the requirements

Parent - subsidiary relationship.

Parent-subsidiary relationship, when both are established and conduct their activities in the same country.

Enforcement

Court of Appeal’s judgement was the ultimate decision on parent company liability.

 

Pros

One of the first cases in which a parent company was held to owe a duty of care to a subsidiary’s employee.

 

Cons

Both parent and subsidiary were based in the same country. Lack of extraterritorial dimension.

Both the parent, Cape PLC, and the former subsidiary, Cape Products, were based in the UK. The victim was also a British citizen. Therefore, a closer link between the parent company and the employee (to which the company is deemed to owe a duty of care) was easier to be established.

The case lacks the extraterritorial dimension present in much human rights transnational litigation. See, in this regard, the Dutch court decision in Akpan and others v. Shell (2013), where the judge dismissed claims against the parent company and, referring to the Chandler v. Cape ruling, affirmed that: “The District Court finds that the special relation or proximity between a parent company and the employees of its subsidiary that operates in the same country cannot be unreservedly equated with the proximity between the parent company of an international group of oil companies and the people living in the vicinity of oil pipelines and oil facilities of its (sub-) subsidiaries in other countries.” The ruling has been appealed and the preliminary Court of Appeal decision has not yet rejected the possibility of a duty of care on the parent.

Broader Application to Other Sectors; Jurisidctions

Possible impacts on the establishment of parent liability beyond health and security issues; as well as guidance for other jurisidctions.

The ruling specifically concerns liability for health and security issues. Nevertheless, the way in which the “test” to identify a duty of care is interpreted can impact the assessment of parent liability in other areas.

Despite the lack of a foreign element, the ruling is likely to influence transnational corporations conducting business in several jurisdictions. For instance, in recent cases, judges of the High Court in few of the recent cases relied on Chandler v. Cape to determine whether the claimants presented an arguable claim against the English-based parent company in relation to operations of a foreign subsidiary (See His Royal Highness Okpabi v. Royal Dutch Shell, [2017] EWHC 89 (TCC); AAA v. Unilever Plc, [2017] EWHC 371 (QB); Lungowe v. Vedanta Resources Plc [2016] EWHC 975 (TCC)). Yet, a final determination on this application is still outstanding.

Resources

Verdict.

♦ Analysis in lexicology (by Wedlake Bell).

Okpabi v. Shell

 

In a nutshell

In more detail

Name of Case

Okpabi  v. Shell

His Royal Highness Emere Godwin Bebe Okpabi and others v Royal Dutch Shell plc and Shell Petroleum Development Company of Nigeria Ltd, [2017] EWHC 89 (TCC) (26 January 2017)

Lucky Alame and others v. Royal Dutch Shell plc and Shell Petroleum Development Company of Nigeria Ltd

Area of Law

Tort Law

 

Jurisdiction

UK

 

Current Stage

January 2017: Judge at first instance rejected jurisdiction over the claims.

Claimants have appealed, decision pending.

January 2017: The judge sitting in the Technology and Construction Court section of the London High Court handed down its decision whereby;

• It rejected jurisdiction over the claims against the parent company, finding that the claimants failed to present an arguable claim that the parent company was responsibile for the systematic pollution caused by its subsidiary;

• It held that, since the case against the parent company had no prospect of success, the claims against the Nigerian subsidiary could similarily not proceed in English courts;

• It held that claimants needed to seek redress in Nigerian courts.

Claimants appealed the case arguing that the court decided the merits of the case at a very early stage before full disclosure of documents and oral testimony, which would have provided evidence on the relationship between the parent and the subsidiary thereby influencing the outcome.

­Decision of the Court of Appeal pending. Hearing of appeal begins 21 November 2017 and decision is expected in early 2018.

Requirement/Result

Damages, clean-up and remediation costs

Claimants demand compensation for damages arising as a result of serious and ongoing pollution and environmental damage caused by oil spills emanating from Shell’s oil pipelines and associated infrastructure;

Damages for clean-up and remediation costs, alternatively injunctive relief.  

Personal Scope

Two sets of proceedings presented by two seperate communities in Nigeria, the Ogale Community (Ogoniland) and the Bille Kingdom.

Defendants in both set of proceedings are the parent company, Royal Dutch Shell, and its subsidiary, Shell Petroleum Development Company of Nigeria Ltd.

First set of proceedings:
Claimants: seven people, including Okpabi (King of Ogale) on behalf of the Ogale Community (approximately 40,000 villagers) in Nigeria.

Second set of proceedings: Claimants on behalf of the inhabitants of Bille Kingdom.

Reach of the requirements

Claimants from the two communities seek damages for serious and ongoing pollution and environmental damage caused by oil spills emanating from Shell's oil pipelines and associated infrastructure.

Samages for clean-up and remediation costs, alternatively injunctive relief. 

 

Pros

None at this stage of the proceedings.

 

Cons

The decision:

Set a high hurdle for the claimants to demonstrate the existence of a duty of care owed by the parent company;

Disregarded publicly available evidence on the relationship between the parent and the subsidiary;

Basically relied on the doctrine of separate legal personality and limited liability principle, finding the claimants’ evidence was insufficient to overcome these hurdles.

The judge set a high hurdle for claimants to prove that there is a "real issue which is reasonable to be tried" between them and the parent company, in order to determine the existence of a duty of care owed by Royal Dutch Shell.

The test itself is not novel and is used by the English courts to ensure that the domicile of English-based companies is not abused to litigate weak claims against foreign subsidiaries. However, in Okpabi the judge engaged in a thorough analysis of parent company liability at a very early stage. Arguably, his decision on jurisdiction to a large extent constituted a trial on the merits of the case. It is concerning that the substance of the claim was considered at the interlocutory stage of proceedings before full disclosure of the evidence.

The judge disregarded certain evidence on the close relationship between the parent company and its subsidiaries available in the public sphere. The burden of proof is one of the most significan barriers to claimants bringing foreign direct liability cases in a parent company’s home state. Claimants rarely have access to the internal documents of the company revealing it’s structure, organisation and true relationship to its subsidiary.

Overall, the High Court took a very conservative approach to the issue of parent company liability by heavily relying on the doctrine of separate legal personality and the limited liability principle. The judge considered claimants’ evidence on the parent company’s control of operations, but concluded that it was insufficient to overcome the fundamental principles of corporate law.

Broader Application to Other Sectors

If successful, a decision on parent company liability in tort law could be similarly applied to other transnational human rights litigation in common law countries.

Decision on parent company liability in tort law could be similarly applied to other transnational human rights litigation in common law countries.

If successful, victims of corporate human rights abuses in host states could seek redress in courts of the parent company’s home country for the acts or omissions of a subsidiary abroad.

Resources

♦ Article on Leigh Day website (claimants’ lawyers).

♦ First Instance decision on jurisdiction.

“Suing TNCs in the English courts: the challenge of jurisdiction” analysis by Ekaterina Aristova.

Lungowe v. Vedanta

 

In a Nutshell

In More Detail

Name of Case

Lungowe v. Vedanta

Lungowe and Ors (1,826 Zambian villagers) v. Vedanta Resources plc and Konkola Copper Mines plc [2017] EWCA Civ 1528 (Vedanta is an extractive resources company domiciled in the UK. Konkola Copper Mines plc (KCM) is Vedanta’s subsidiary company operating in Zambia).

Area of Law

Tort Law

Tort Law. Against Vedanta, the claimants allege a duty of care was owed on the basis of an assumption of responsibility for ensuring that KCM’s operations do not cause harm evidenced by: a high level of control exercised over KCM’s operations; the business of Vedanta and KCM being relevantly the same; Vedanta knew or ought reasonably to have known that KCM’s operations were unsafe; that Vedanta had superior knowledge and ought to have foreseen that KCM would rely on this superior knowledge. Against KCM, a number of claims based in negligence, nuisance, Rylands v. Fletcher, trespass and liability under Zambian statutes.

Jurisdiction

UK Court of Appeal

UK Court of Appeal

Current Stage

Concluded in October 2017.

In 2015, whilst the Zambian villagers attempted to bring claims against Vedanta and KCM for the damaging impact of waste discharge from the Nchanga copper mine owned by KCM, the High Court ruled that the claimants could bring their case to English courts.

Vedanta and KCM appealed this decision on the grounds that KCM and the claimants are domiciled in Zambia, and that therefore Zambia is the appropriate jurisdiction to try the case. In October 2017, the Court of Appeal handed down its decision, ruling in line with the High Court that the case could be heard in English courts.

 

Vedanta have sought and been granted leave to appeal to the Supreme Court.

Result

The Court of Appeal found that the case could be tried in English courts.

The Court of Appeal found that the case could be tried in English courts on the grounds that Vedanta might hold a duty of care to those directly affected by the KCM’s operations. Although the court did not rule that Vedanta did have a duty of care, the possibility was sufficient for there to be a ‘real issue’ between Vedanta and the claimants. On this basis, Vendanta was a “necessary or proper party” to the proceedings.

 

Noting the criteria in Chandler v Cape , the court held that even though there had been no reported case where a parent company was found to have owed a duty to those affected by the operations of a subsidiary, this did not make such a claim unarguable. A duty of care may arise for the employees of a subsidiary, and others affected by its operations, if it could satisfy the Chandler v Cape criteria, including that the parent company had ‘superior knowledge or expertise’ relating to the health and safety aspects of the subsidiary’s operations.

 

From the evidence supplied by the claimants, the court decided that Vedanta may have such a duty of care.

 

Despite KCM being domiciled in Zambia, it was held to be a proper defendant on the basis that the claims against it and Vedanta were substantially the same. Had KCM already been in the jurisdiction, it would plainly have been a proper defendant.

 

The court confirmed that FNC is not applicable in the EU where a claim is in a court in which the defendant is domiciled, following Owusu v Jackson.

Personal Scope

Claimants: 1,826 Zambian villagers.

 

Defendants: Vedanta Resources plc and Konkola Copper mines plc.

 

Reach of Requirement

Parent and subsidiary companies, regardless of jurisdiction of the subsidiary company.

 

Duty of care to employees and all those directly affected by the operations of the subsidiary.

The ruling went beyond Chandler in two important ways. In Chandler the claim had been brought against a parent and subsidiary company, both domiciled in the UK. The court in Chandler ruled that the parent company had a duty of care to the employees of its subsidiary, and did not consider whether this duty extended to the local community.

In Vedanta, however, KCM was domiciled in Zambia, not the UK. Following the authority of Owusu v. Jackson, the court decided that in line with Article 4 of the Brussels regulations English courts could not refuse to try a case in which the defendant was domiciled in the UK. As there was a ‘real issue’ between Vedanta, a UK-domiciled company, and the claimants, the case had to be accepted. The defendant’s arguments for forum non conveniens were therefore rejected.

Further, the court raised the possibility that a parent company duty of care holds may extend to those directly affected by the operations of KCM, not only its employees.

Pros

  • Opened the possibility that parent companies may have a duty of care to employees of, and all those directly affected by, the operations of its subsidiaries.
  • This duty of care may extend to subsidiaries operating outside the UK.
  • The court made a strong and likely conclusive statement on the operation of Owusu v Jackson and thus the defendant’s argument for forum non conveniens was rejected.
  • Judge considered that the poor opportunity for access to justice in Zambia added to the claimant’s case.
  • Although the remarks on the extension of parent company liability are obiter dicta, they lay a marker for future claimants.

 

Cons

  • Lacks direct precedent value as the court did not rule on the substantive issues.
  • Decision is presently under appeal.
  • At the trial of the substantive issues, the court may find that in fact and law, Vedanta did not have a duty of care to the local community in Zambia.
  • Without mandatory human rights due diligence and the reversal of the burden of proof, it has so far been difficult to prove the how far the parent company does in fact have ‘superior knowledge and expertise’ over the health and safety aspects of its subsidiary.

 

Resources 

♦ The judgment.

♦ Blog on the wider implications of the case. 

♦ Another wider implications blog.

♦ Leigh Day summary of the case. 

♦ Useful explainer on parent company liability and jurisdiction in the UK more generally. 

AAA v. Unilever

 

In a Nutshell

In More Detail

Name of Case

AAA v. Unilever

AAA (218 Kenyan nationals who were either employees/former employees or residents/former residents of Unilever Tea Kenya Limited’s plantation) v. Unilever Plc (UPLC) and Unilever Tea Kenya Limited (UTKL) [2017] EWHC 371 (QB).

The claimants were victims of ethnic violence on UTKL’s plantation following the 2007 Kenyan presidential election.

Area of Law

Tort Law

Tort Law.

At issue was whether or not the case against UTKL, a Kenyan-domiciled company, and UPLC, a UK-domiciled company, then indirectly holding 88.2% of UTKL’s shares, could be heard in English courts on events that occurred in Kenya.

Against UPLC, the claimants alleged a common law duty of care and that this duty of care was breached.

Against UTKL, the claimants relied on an alleged breach of the statutory duty imposed by the Occupiers’ Liability Act (Cap 34).

As victims of the ethnic violence carried out on the plantation by a third party, the claimants argued that the risk of this violence occurring was foreseeable, that the defendants therefore owed them a duty of care to protect them from these risks, and that the defendants breached this duty of care, causing the claimants to suffer damage/loss. 

Jurisdiction

UK High Court

UK High Court. The result is subject to appeal and will be heard in the Court of Appeal in April 2018.

Following Owusu v Jackson, the court confirmed that forum non conveniens is not applicable in the EU where a claim is in a court in which the defendant is domiciled.

Had the claim that UPLC owed a duty of care to the claimants been found to have had arguable merit, the claimants may have been permitted to serve proceedings upon UTLK as a necessary and proper party and the case could have therefore been heard in English courts. 

Current Stage

Concluded in February 2017.

Case is due to be heard in the Court of Appeal in April 2018.

 

Result

The High Court found that the case against both defendants could not be heard in English courts.

Because UPLC could not use forum non conveniens arguments, the case rested on whether or not the claims of duty of care had arguable merit.

If the claims against UPLC had arguable merit, then there would have been a real issue between UPLC and the claimants, meaning that the English courts could not decline to try the case, following Owusu.

Unilever was thereby an important confirmation of the emerging doctrine of parent company liability in UK case law. Despite UPLC being a separately incorporated company to its subsidiary, incorporated in a different jurisdiction to where the harm complained of occurred, it was possible for UPLC to owe a duty of care to the victims of that harm and to be held liable for the loss suffered as a consequence of the breach of that duty of care.

However, the court found that the claims of duty of care did not have arguable merit and so the case could not be heard in the English courts.

The court used the three stage test laid out in Caparo Industries plc v Dickman of 1. Foreseeability 2. Proximity and 3. Reasonableness, to determine whether a duty of care should be imposed on UPLC. 

The court found that the harm suffered was not foreseeable by UPLC, that the pleaded duty owed was too onerous in the circumstances and that it was therefore not fair just and reasonable to impose the pleaded duty upon UPLC.

On balance, therefore, the court decided against the claimants on this issue. Importantly, however, the court did remark, orbiter, that the second limb of Caparo might succeed ‘based on the documents by which [UPLC] has sought to exercise control over the management of [UTKL] and [UTKL’s] various policies’.

Despite the tests of foreseeability and reasonableness failing, therefore, the court confirmed the reasoning in Chandler, Vedanta and Shell that a parent company might be tied to its actions in relation to its subsidiaries via documents that prove de facto control. 

 

Personal Scope

Claimants: 218 Kenyan nationals.

 

Defendants: Unilever plc and Unilever Tea Kenya Limited.

 

 

Pros

  • Judgment held that UPLC did not have the option of using forum non conveniens arguments.
  • Helped confirm the emerging doctrine of parent company liability. Claims against UK-domiciled parent companies involving abuses committed by non-UK domiciled subsidiaries, can be brought to English courts
  • Helped confirm that non-UK domiciled subsidiaries of UK-domiciled parent companies can be joined as necessary parties to claims brought in the English courts if a real issue can be established between the claimants and the parent company.
  • Court remarked, orbiter, that the issue of proximity could be solved by internal company documents and policies that proved a degree of de facto control over the subsidiary, as in Chandler and Vedanta.
  • The claimants have been granted leave to appeal in the Court of Appeal.

 

Cons

  • The court decided against the claimants, ruling that it was neither foreseeable nor reasonable to impose a duty of care upon either of the defendants.
  • In reference to the question of proximity, the judgment did note that, unlike in Chandler, there was no close geographic link between the parent and its subsidiary.  

 

Resources 

♦ Useful blog on the case.

 

Policy Developments

UK Parliament Joint Committee on Human Rights

In March 2017, the UK Parliament’s Joint Committee on Human Rights published the Report of its inquiry into human rights and business, entitled “Human Rights and Business 2017: Promoting responsibility and ensuring accountability.” The report addresses the need for legislation on the corporate duty of care:

"193. We recommend that the Government should bring forward legislation to impose a duty on all companies to prevent human rights abuses, as well as an offence of failure to prevent human rights abuses for all companies, including parent companies, along the lines of the relevant provisions of the Bribery Act 2010.  This would require all companies to put in place effective human rights due diligence processes (as recommended by the UN Guiding Principles), both for their subsidiaries and across their whole supply chain.  The legislation should enable remedies against the parent company and other companies when abuses do occur, so civil remedies (as well as criminal remedies) must be provided. It should include a defence for companies where they had conducted effective human rights due diligence, and the burden of proof should fall on companies to demonstrate that this has been done."

Resources

♦ Full text of the Parliament Committee.

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