The claimants sought to bring an action against the English
parent company of a Nigerian subsidiary which had allegedly caused
environmental damage in Nigeria. It was argued that the claimants
were "cynically" using the English parent company as an
"anchor defendant" in order to bring claims here that
would otherwise have no connection with England. The claimants
countered that both defendants were legally responsible for the
Fraser J was therefore required to consider the claim against
the parent company under English law. In so doing, he acknowledged
that the issue of whether a claim would more appropriately be
brought in a non-Member State country does not arise where the
English court is first seised of a claim brought against a
UK-domiciled defendant (see Owusu v Jackson ).
Applying the three ingredients of the test set out in Caparo
Industries v Dickman  (foreseeability, proximity and
reasonableness), the judge concluded that it was not reasonably
arguable that there was any duty of care on the parent company for
the acts or omissions of its Nigerian subsidiary. Applying the
principle set out by Tomlinson LJ in Thompson v Renwick
(see Weekly Update 18/14), it could not be said that "the
parent company is better placed, because of its superior knowledge
or expertise" than the subsidiary is in respect of the harm
and nor could it be inferred that the subsidiary would rely on the
parent deploying its superior knowledge.
One further argument considered in this case was whether the use
by the claimants' solicitors of Conditional Fee Agreements
("CFAs") was oppressive or whether it meant that there
was a real risk that the claimants would not obtain substantial
justice if they are required to litigate their claims in Nigeria.
Although the judge accepted that this might be a relevant
consideration if CFAs were not available in Nigeria, that was not
the position on the facts. He concluded that the fact that CFAs are
the "business model" of the claimants' solicitors was
not a relevant factor one way or the other.
Al-Rawas v Hassan Khan: Bringing a counterclaim after
expiry of limitation period
The claimant commenced proceedings in August 2013. In April
2014, the defendant served a counterclaim. That counterclaim had
become time-barred, though, in 2012. However, the defendant argued
that the effect of section 35 of the Limitation Act was that it
could nevertheless advance its counterclaim, provided that it had
not previously advanced a counterclaim. That argument was rejected
by Laing J and the defendant appealed.
The case turned on the construction of section 35, which the
Court of Appeal accepted was "not a model of clarity". It
went on to hold, though, that section 35 had only the procedural
effect of deeming any new counterclaim as having been brought on
the date when the action was commenced (rather than on the date
when the counterclaim was first made). It does not have the effect
of disapplying the underlying limitation period for the
counterclaim: "it is difficult to discern any intelligible
legislative policy behind a provision which would enable a
counterclaim of any age, and no matter how stale, to be pursued,
merely because, as a matter of happenstance, the party raising such
a new claim, had been sued. The judge pointed to the absence of
clear words mandating such a surprising result; and she
characterised such an intention as 'capricious' and
productive of legal uncertainty. I agree." (as per Sharp
Sharp v Leeds City Council: Court of Appeal considers
pre-action disclosure costs where claim started and discontinued
under the EL/PL Protocol
The short point considered by the Court of Appeal in this case
was whether the fixed costs regime for claims which start, but are
then discontinued, under the EL/PL Protocol applies to pre-action
disclosure ("PAD") in connection with the claim.
Different district judges have adopted different approaches to this
issue. The Court of Appeal's conclusion was that: "the
fixed costs regime plainly applies to the costs of a PAD
application made by a claimant who is pursuing a claim for damages
for personal injuries which began with the issue of a CNF in the
Portal pursuant to the EL/PL Protocol but which, at the time of the
PAD application, is no longer continuing under that Protocol
". That is because the fixed costs regime is intended to be
clear, with expressly stated exceptions set out, and hence no
implied exceptions should be allowed.
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