Vava & Ors v Anglo American South Africa Ltd

The claimants in each of these actions have brought claims for damages for personal injuries arising out of their employment against Anglo American South Africa Limited (“AASA”), which is a company incorporated under the laws of South Africa. The actions, which are the subject of the present application, have been commenced against AASA, not in South Africa, but in England on the basis that AASA is in fact “domiciled” in England. It is part of the multi-national Anglo American Group of companies and the ultimate parent of AASA is Anglo American PLC (“AA plc”), which is a company incorporated in England.

Applications have been made by AASA seeking declarations that this Court has no jurisdiction to hear these claims on the basis that AASA is domiciled in South Africa and is not “domiciled” in England, within the meaning of Article 60 of Council Regulation (EC) 44/2001, which is the Judgments Regulation or Brussels 1 Regulation.

The issue raised on this application is whether the Court should grant applications for specific disclosure and for further information from AASA on the basis that it is necessary and proportionate for the claimants to have this material for the jurisdiction application.

Mr. Alexander Layton QC and Mr. Richard Hermer QC, counsel for the claimants, contend that they are entitled to this information and to the documents pursuant to CPR 18.1 and CPR 31.12 respectively, but this is strenuously disputed by Mr. Guy Philipps QC and Mr. Stephen Midwinter counsel for AASA, who not only dispute that the English courts have jurisdiction, but also that the claimants are entitled to the information and the disclosure sought.

These applications are brought in two separate actions in which AASA are either the defendant or one of the defendants. In the first of these cases, Flatela Vava and others v AASA, claims have been brought by nineteen claimants, who were employed as mine workers in AASA’s gold mines in South Africa and who have since contracted silicosis, which they contend was caused by the negligence or the breach of duty of AASA.

The second action is Young v AASA and others, in which it is alleged that the claimant suffered avoidable severe consequences of inherited metabolic disorder by reason of the negligence of doctors for whom AASA is alleged to be vicariously liable. There is also a claim of negligence against an independent practitioner Dr Jankowitz for whom AASA is not said to be vicariously liable.

I gather that the parties in a further action (Qashani and Others v AASA) await the outcome of the jurisdictional challenge in this case. That case involves 1106 claimants and this number will probably increase to thousands of claimants given the scale of disease resulting from work at AASA’s gold mines.

It is common ground that the claimants can only sue AASA in England if it is domiciled in this country. Article 60 of the Brussels I Regulation provides (so far as relevant) that:-

“1.

For the purposes of this Regulation, a company or other legal person or association of natural or legal persons is domiciled at the place where it has its:

(a)

statutory seat, or

(b)

central administration, or

(c)

principal place of business.

2.

For the purposes of the United Kingdom and Ireland "statutory seat" means the registered office or, where there is no such office anywhere, the place of incorporation or, where there is no such place anywhere, the place under the law of which the formation took place.”

There is no dispute that AASA was incorporated under the laws of South Africa and has its registered office there, with the result that the claimants cannot and do not seek to prove that AASA’s domicile is in this country on the basis of it being its “statutory seat”. The claimants contend that AASA has its “central administration” and/or its “principal place of business” in England. AASA disagree and they contend that the “central administration” and the “principal place of business” of AASA is in South Africa and so the present proceedings cannot be pursued in the English Courts. As I will explain, the claimants correctly accept that their claim based on “central administration” is their stronger claim.

The claimants contend that they are entitled to further information pursuant to CPR 18.1(1), which provides that:-

“(1)

The court may at any time order a party to –

clarify any matter which is in dispute in the proceedings; or give additional information in relation to any such matter, whether or not the matter is contained in or referred to in a statement of case.”

An application for further information may be made at any time and it is not confined to matters in a statement of case. The test for succeeding in such an application is whether the information is reasonably necessary to enable a party to prepare its own case or to understand the case it has to meet: see PD18, para. 1.2. In considering the application, the court considers the likely benefit, which will result if the information is given, and the likely cost of giving it. It is not suggested that the giving of the information is not well within AASA’s financial resources: see White Book, para. 18.1.5.

The claimants also seek orders for specific disclosure pursuant to CPR 31.12, which (so far as relevant) provides that:-

“(1)

The court may make an order for specific disclosure or inspection.

(2)

An order for specific disclosure is an order that a party must do one or more of the following things –

(a)

disclose documents or classes of documents specified in the order;

(b)

carry out a search to the extent stated in the order;

(c)

disclose any documents located as a result of that search …”

Such an application under this rule may be made at any stage of the proceedings: see White Book, para. 31.12.1.1. The court will take account of all the circumstances of the case and the overriding objective in CPR Part 1, which of course require that cases be dealt with justly and, among other things, in a way that ensures that the parties are on an equal footing: PD 31A, para. 5.4.

It is common ground that this application raises two issues which are:

Waller LJ explained in Canada Trust Company v Stolzenberg (No 2) [1998] 1 WLR 547 at page 555 when faced with a dispute on jurisdiction that:-

“'Good arguable case’ reflects in that context that one side has a much better argument on the material available”.

The test of determining whether a claim is “arguable” has been considered in the context of judicial review applications in which it was decided that permission to make such an application on the basis that a claim is “arguable” would be granted “where on a quick perusal of the material then available, the court thinks that it discloses what might on further consideration turn out to be an arguable case” (per Lord Diplock in R v Inland Revenue Commissioners ex parte National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617, 644 a). This test was described by Laws J (as he then was) as “most certainly the general rule” (R v Secretary of State for Trade and Industry ex parte Greenpeace Limited [1998] Env LR 415,418). It is not disputed that I should adopt this test in dealing with these issues set out in paragraph 14(a) above and I will do so.

The claimants’ primary case is that the “central administration” of AASA is in England and they also contend that the “principal place of business” of that company is in this country. Mr. Layton submitted that the place of “central administration” means where as a matter of fact “the important decisions are made; the entrepreneurial management takes place”. Mr. Philipps agrees that this is the meaning of this is the meaning of “central administration” but contends that what is relevant are the decisions of the company itself and not the decisions of its ultimate parent.

Thus in determining if the claimants can show that their case on jurisdiction is at least arguable, it is necessary to consider first what has to be shown in determining the “central administration” and the “principal place of business” of AASA; and then second to seek to ascertain the relevant facts in order to determine whether the claimants’ case on jurisdiction is arguable.

Mr. Layton submits that in determining the “central administration” of a company, an enquiry has to be carried out by the court and that it is not necessarily where the company is registered or the system of law under which it is formed. He stresses the significance of ascertaining where the main management of the company is situated and where management/entrepreneurial decisions are taken. There is some academic learning, but much less case law on the meaning of these concepts. He contends that support for his submission is derived from the opinions of various authoritative commentators.

First, he relies on the statement of Professor Paul Vlas of the University of Amsterdam in The European Commentaries on Private International Law – Brussels I Regulation (2^nd Revised Edition) edited by Ulrich Magnus and Peter Mankowski at pages 811-2 that:-

“The notion ‘central administration” …means the management and control centre (the ‘real seat’). Although every company or legal person has a central administration, this notion is less easier to ascertain than the statutory seat”.

Second, he submits that he can derive support from a certified translation of the Commission’s Explanatory Memorandum by Professor Jan Kropholler in which it is said that:-

“Central Administration means the place where the decisions are made and entrepreneurial management effectively takes place i.e. usually the place where the bodies of the company or firm are located”.

Third, Mr. Layton points out that similar views are expressed by Professors Geimer and Schütze in European Civil Procedure Law (3^rd Edition 2004), where it is said that: -

“The place of central administration is determinative of the place where decisions are made and the “entrepreneurial” management of the company or other legal person or association of natural or legal persons takes place”.

Mr. Layton next relies on the statement by Professor Briggs and Mr. Rees in Civil Jurisdiction and Judgments (5^th Edition 2009) at page 206 that in determining where the “central administration” of a company is situated:-

“One approach may be helpful would be to examine where those who have the serious responsibilities in the company have their places of work”.

Mr. Layton seeks to derive assistance from the conclusion of Professor Peter Stone, who states in “EU Private International Law” (Second Edition 2010) (pages 69 - 70) that:-

“The concept of central administration… appears equivalent to the place of central management and control used in section 42 [of the European Communities (Civil & Commercial) Judgments Regulations 2002] which was clarified by the Court of Appeal in The Rewia [1991] 2 Lloyds Reports 325”.

The meaning of the “principal place of business” was stated in The European Commentaries on Private International Law – Brussels 1 Regulation I (supra) to be the “principal place of business means the de facto seat”.

This is not different from what Professor Kropheller (supra) says, which is that: -

“Principal place of business (or de facto seat) means the de facto centre of business, in the case of factory the central production site or any other place where the material human and tangible resources are concentrated”.

Mr. Layton submits that his contention that the place of the “central administration” of a company is where management decisions are taken is supported by the decision in King v Crown Energy Trading AG [2003] EWHC 163 (Comm) in which HH Judge Chambers QC, sitting as a Deputy High Court Judge, held that the claimant had a good arguable case that the defendants’ central administration and principal place of business was in England, notwithstanding that the defendants had their statutory seat in Switzerland. He reached his conclusion by conducting an examination of the reality of where the work and management of the companies were carried out.

In 889457 Alberta Inc v Katanga Mining Limited [2008] EWHC 2679 (Comm), Tomlinson J (as he then was) held that the place of central administration of a company was in London where its managers resided, notwithstanding that the company was incorporated in Bermuda and was resident in Canada for tax purposes.

Another case relied on by Mr. Layton was Ministry of Defence and Support of the Armed Forces for Iran v Faz Aviation and another [2007] ILPr 42, in which Langley J held that the “central administration” and “ the principal place of business” were frequently in the same country because “in a real sense, the business was carried on and controlled by [the managing director] from wherever he was and that was largely in and from Cyprus”, even though the day-to-day conduct of the business was carried out at a London office.

Finally, Mr. Layton relies on two German cases. First, there is the decision of the Supreme German Employment Court, which is the German Federal Labour Court, 5 AZR 60/07, of 23 January 2008 [2008] NJW 2797, in which it held that mere secondary management tasks such as accounting and settlement of tax matters are irrelevant for determining the seat of the head office.

Mr. Layton’s second German case is the decision of the German Federal Supreme Court in its decision XII ZB 114/06 of 27 June 2007 in which it held that a company with a registered office in Birmingham had its central administration in Germany where it did all its business and where it was managed. It was also said that in respect of a company that: -

“11…the administrative centre is the place where the decision-making and actual entrepreneurial management of the company occurs”.

As I have explained, the case for AASA is that the claimants do not have any basis for the assertion that it is domiciled in England. The case for AASA is essentially that:-

Mr. Philipps accepts that the European Court of Justice has not directly ruled on what constitutes a company’s “central administration” or “principal place of business”, but he contends that this is because these terms are so clear to a civilian lawyer that it is unnecessary to do so.

On the question of what the meaning is of “central administration”, Mr. Philipps relies on the statements by Dr Ulrich Everling (who later became a Judge of the European Court of Justice) in his book “The Right of Establishment in the Common Market” (1964) in which he says at paragraph 314 at page 75 that:-

“The central administration is located where the company organs take the decisions that are essential for the company’s operations. In this connection only the organs of the company itself count; it is irrelevant whether the company depends on the decision of a parent company which has its domicile outside the Community.  In most instances, the principal establishment and central administration are located at the same place; the principal establishment is located at the most crucial point of the company’s economic activities which means primarily the situs of its most essential operational facilities.”

This statement is probably the high water mark of the defendant’s case so far as writings are concerned, as it expressly states that in assessing the place of the “central administration” of a company, it is immaterial that the company depends on decisions of a parent company, which is domiciled outside the community, although in this case the parent company (AA plc) was based in London within the community. Mr Philipps contends that Dr Everling agrees with his case when he avers that “The central administration is located where the company organs take the decisions that are essential for the company’s operations”. Mr Layton contends that Dr Everling agrees with part of what he submits.

Mr. Philipps contends that his submissions are supported by the approach of Park J in Holden v Wood [2005] EWHC 547 (Ch), which was upheld on appeal [2006] 1 WLR 1393. The issue in that case was whether the “central management and control” of a company was exercised in England so as to give rise to a tax charge. The wording applied in that case was different from that in the present case and the context was also different but it was accepted that it is relevant to decide if the management functions of the constitutional organs of a company (namely the Board of Directors) are being usurped. Chadwick LJ said that:-

“27…In seeking to determine where "central management and control" of a company incorporated outside the United Kingdom lies, it is essential to recognise the distinction between cases where management and control of the company is exercised through its own constitutional organs (the board of directors or the general meeting) and cases where the functions of those constitutional organs are "usurped" - in the sense that management and control is exercised independently of, or without regard to, those constitutional organs. And, in cases which fall within the former class, it is essential to recognise the distinction (in concept, at least) between the role of an "outsider" in proposing, advising and influencing the decisions which the constitutional organs take in fulfilling their functions and the role of an outsider who dictates the decisions which are to be taken. In that context an "outsider" is a person who is not, himself, a participant in the formal process (a board meeting or a general meeting) through which the relevant constitutional organ fulfils its function.”

In Briggs and Rees (supra), it is stated at page 206 in relation to guidance contained in judgments applying the old test of “central management and control” of a company, that the authors doubt “whether [such judgment] is of any guidance in relation to the new rule must be open to serious doubt”. Holden v Wood was one such case.

The defendants also rely on other statements from the German Federal Court of Justice in its judgment of 27 June 2007, NJW-RR 208 page 551 in which it says that the place of central administration is “where the decisions are made and entrepreneurial management effectively takes place” [11]. This again is similar to what Mr. Layton and the claimants contend to be the correct approach.

In that case, the German court cited with approval the statement of Dr Jan Kropholler in European Civil Procedure Law (Eighth Edition 2005) in which he said that central administration “is usually the place where the bodies of the company or firm are located”. There is further support for this in other German works such as von Der Groeben and Schwarze in “Commentary of the Treaties on European Union and Establishing the European Community” (Sixth Edition 2003) by Peter Troberg and Jurgen Tidje, in which it is said that: -

“Central administration means the place where the bodies of the company or firm are located which is, incidentally, not the place of the Group management in the case of the company or firm being part of a Group but the place of the bodies of the dependant undertaking which intends to exercise the right of establishment.”

Turning to the question of ascertaining the “principal place of business”, Mr. Philipps relies on a French decision of the Court of Appeal of Douai on 22 February 2007 (Juries-Data no. 2008-365485) in which it is said that:-

“the principal place of business… would have to be understood as the place where the majority of its activity is exercised in comparison with other places in which it is established”.

Vandekerckhove reaches a similar conclusion when she states in Commentary to Art. 60 EEX-Regulation” that:-

“The concept of “principal place of business” means the centre of the business activities. This is the place where the most important centre of the economic, industrial or commercial activity of a company is situated and where most of its employees and business assets are deployed.” [19]

I have now to determine what conclusions can be reached about the appropriate legal tests for determining the “central administration” and the “principal place of business” of AASA. Pulling these threads together, it is noteworthy that the location of the “central administration” of an entity is only one of the alternative places in which it is domiciled and this indicates that it is not invariably and automatically the same as either the “principal place of business” or the “statutory seat” of a company, which is, as I explained in paragraph 8 above, the company’s registered office. This shows that the location of the “central administration” of a company is not necessarily the same as the location of “the principal place of business” of the company or its registered office.

It is common ground that there is no authoritative ECJ decided case or cases on the meaning of the term “central administration”, but the writings to which I have referred (and in particular those of Professors Kropholler, Geimar and Shütze) support Mr. Layton’s case, which suggests that the “central administration” of a company is where decisions are made; and where the entrepreneurial management takes place. The decisions in the cases to which I have referred are also broadly supportive of this approach which also means that the place of central administration is not simply where a company’s Board meetings and AGMs are held. So I am quite satisfied that the claimants have at least an arguable case that the “central administration” of a company is where management decisions are taken and where entrepreneurial decisions take place irrespective of where its economic activities occur.

The “principal place of business” of a company is not necessarily the same as the location of its “central administration”, and it is at least strongly arguable that it is where in the words of Vandekerckhove set out in paragraph 41 above where: -

“The most important centre of the economic, industrial or commercial activity of a company is situated and where most of its employees and business assets are deployed”.

It is not disputed that AASA is an indirectly wholly owned subsidiary of AA plc or that the South African assets of AASA have an approximate value of £6.5 billion, which constitutes approximately 40% of the worldwide assets of the Anglo American Group.

The Chief Executive Officer of AASA Mr. Godfrey Gomwe has explained that AASA does not carry out any mining or operating business and that it does not have any employees. His evidence is that AASA is run by a Board of Directors, who are largely based in South Africa and who meet in South Africa where it is administered. He did however explain that those decisions are made in the context that AASA is ultimately a wholly owned subsidiary of AA plc “which obviously means that the company has regard to the policy and strategy of AA plc in making its own decisions”. This is an important and a not surprising statement, because it shows that the ultimate holding company of AASA, which is AA plc, does influence, if not determine, at least some of the decisions of AASA, which is a company whose vast assets constitute such a substantial part of the assets of the Anglo American Group.

The claimants also rely on further evidence including the public statement by AA plc appointing Mr. Gomwe, which explained that he would act as AA plc’s key representative in South Africa working together with Anglo American business units’ Chief Executive Officers to deliver the Group’s strategy in the region. Mr. Gomwe also reports directly to Ms Cynthia Carroll, the London-based Chief Executive Officer of AA plc, and this indicates at least one way in which AA plc could make or at least influence the decisions taken by AASA.

The Board Minutes of AASA were produced by Mr. Gomwe for the period between September 2010 and October 2011 and they indicate that the AASA Board only met on 6 September 2010, 23 September 2010 and 18 April 2011. It is said by Mr. Layton correctly in my opinion that the irregularity and the limited number of these meetings showed that decisions concerning AASA’s business must have been made outside its formal Board meetings, especially in the light of the size of AASA’s assets. It is said by Mr. Layton that many aspects of AASA’s business were not the subject of any decisions at those meetings, such as holding monitoring and reviewing the South African investments of the Group as well as coordinating, delivering, implementing and progressing Group strategy in South Africa although there was some limited reviewing of the South African businesses.

There is also evidence from some unnamed former senior long term employees of AA plc and senior mining analysts that the financial, strategic and technical management and coordination of the Anglo American Group comes from their ultimate holding company in United Kingdom, which is AA plc.

There is some evidence relating to the workings of the AA plc and that it has a Group Management Committee (“GMC”), which according to its website is “responsible for formulating strategy (for discussion and approval of matters by the Board), monitoring performance and managing the Group’s portfolio”. It has overall charge for monitoring performance of the Group’s business units, corporate policies, practices and standards, major capital decisions and overall management of the Group.  It is also said that the GMC, as mandated by the Board of AA plc, “maintains a Group-wide system of internal control to manage significant Group risks”. Ms Carroll chairs the GMC and another member of the GMC is Mr. Rene Medori, who is also a director of AASA, the Finance Director of AA plc and the Chairman of the investment Committee of AA plc.

AA plc also has a second principal committee, which is the Executive Committee (“ExCo”), which is responsible, according to its website for “developing and implementing Group-wide policies and programmes and for the adoption of best practice standards across the Group”. Godfrey Gomwe, Mr. Medori and three other members of AASA Board (Messrs, Mbazima, Nicolau and Griffith) are also members of ExCo, which is also chaired by Cynthia Carroll, who is, I understand, based in London. ExCo apparently meets in London for two days every two months. One of Ex Co’s members, Mr. Mervyn Walker (the London based Group Director of Human Resources and Communications) has among his other responsibilities the task of assessing, “the role of the corporate centre and the business units in order to deliver competitive advantage and generate value”.

In a document relating to the Leadership team of Anglo American, it is said of another Ex Co member, Mr. Peter Whitcutt that he “played a key role in the development of Group strategy and the key transactions associated with Anglo American’s evolution from diversified South African Conglomerate to focused global miner” and he “assumed a wider finance role, taking on responsibility for Central Finance in London, Johannesburg and the Luxemburg office”.

On that basis, it is submitted by Mr. Layton that AA plc may well be centrally administering AASA by direct control and management decisions of the AASA Board by the GMC or through Mr. Medori or through direct control and management by the GMC or Ms Carroll over Mr. Gomwe. Alternatively this is achieved through the direct control and management of ExCo over Godfrey Gomwe or through Rene Meduri in his capacity as financial director of AA plc and as a Director of AASA or through the other Board members of AASA who are also members of ExCo.

Mr Gomwe has explained that he was appointed as a director of AASA on 1 March 2001 and that he lives in Johannesburg. He explained that AA plc, which is the ultimate parent of AASA, is one of the world’s largest diversified mining and natural resource Groups and that AASA is the head investment holding company of the Anglo American Group’s interests in South Africa. Mr Gomwe stated that the AASA Board is independent in decision making of AA plc and that the members of the Board of AASA are legally obliged to act in the best interests of AASA rather than AA plc. He explained AASA has its place of business in South Africa and that with the exception of Mr. Moduri who is based in London, all the directors of AASA are based in South Africa. Mr. Moduri did not attend any of AASA’s Board meetings of which minutes have been supplied.

In his second witness statement, Mr Gomwe stressed that the Board of AASA made its own decisions on behalf of AASA, and that its Board was the sole decision-making body responsible for making those decisions, but, as I have already explained, he accepted that as AASA is ultimately a wholly owned subsidiary of AA plc, this means that AASA has regard to the policy and the strategy of AA plc in making its own decisions. He stressed that this fact did not mean that AASA had somehow surrendered its corporate identity.

Mr Douglas Alison, who was the Company Secretary of AASA from 1 January 2010 until his retirement on 31 December 2011 having spent 37 years with the Anglo American Group, explained first that AASA is a company incorporated in the Republic of South Africa (Company Registration No. 1917/005309/06) and second that its registered office is at 44 Main Street Johannesburg. It has no employees of its own and the services necessary for it to fulfil its limited functions are provided by various employees of AASA’s subsidiary, Anglo Operations Limited (“AOL”), which is another company that was incorporated in the Republic of South Africa and also with a registered office and principal place of business at 44 Main Street Johannesburg.

The agreement by which AOL provides its services came into effect on 1 January 2011, although similar agreements were in place as between AOL and AASA previously. This agreement is described as an “enabling agreement” and it provides services to AASA all of which are provided in South Africa. They are: -

These services, although important for AASA, do not appear to relate to managerial or to entrepreneurial issues. In addition, as I explained in paragraph 30 above, the German Federal Labour Court has held that mere secondary management tasks such as accounting and settlement of tax matters are irrelevant for determining the seat of the head office.

I readily accept first that AASA is a separate company from AA plc and second the fact that as AASA is a wholly owned subsidiary does not mean that it has the same “central administration” as AA plc. Nevertheless 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 plc is the place where management entrepreneurial decisions relating to AASA’s business are taken.

Those factors include the matters relied on by Mr. Layton that first, AA plc must be concerned to ensure that the correct decisions are taken in relation to the assets of its subsidiary AASA in South Africa especially as they are worth £6.5 billion or 40% of the value of the assets of the Anglo American Group, second, the infrequent Board meetings of AASA, which are said to indicate that major decisions are very likely to have been and to be taken outside those meetings, third Mr. Gomwe’s statement that AASA “has regard to the policy and strategy of AA plc in making its own decision” and this is said to show that management decisions relating to AASA are likely to have been taken by AA plc, fourth, the roles of Mr. Gomwe and his close working links with AA plc, and fifth the role of ExCo (including the frequency of its meetings) and the GMC in either making decisions relating to AASA or affecting its decision-making ability. So I answer in the affirmative the question posed in paragraph 14 above, namely “Can the Claimants show at this stage that their case on jurisdiction (viz. that they have a good arguable case that the place of the Defendant’s central administration, is in England) is at least arguable?”

In reaching that conclusion, I have taken account of the points made by Mr. Philipps, but they do not preclude me reaching this conclusion, which is based on the material before me but my conclusion does not mean that the claimants will also succeed on the substantive jurisdiction application.

Mr. Layton accepted correctly in my opinion that the case for the claimants in establishing that the place of AASA’s “central administration” was in England was substantially stronger than its contention that its “principal place of business” was in England.  Indeed if the claimants’ case depended solely on asserting that AASA’s “principal place of business” was in England, I would have held on the material presently available that the claimants did not have an arguable case that AASA’s “principal place of business” was in England, because the evidence that AASA conducted its economic activities in England or anywhere other than in South Africa does not reach the requisite threshold. This aspect of the case is an academic issue, because my answer to the next issue relating to the orders, which are necessary for the fair disposal of the jurisdiction issue, would not have been different if the claimants had shown that AASA’s “principal place of business” was in England.

I have already set out the appropriate rules in paragraphs 8 and 12 above and the threshold for making orders at this stage is a high one. Indeed Hirst J explained in the pre-CPR case of Rome v Punjab National Bank (No 1) [1989] 2 All ER 136 at 141 that:-

“I wish to stress that, as counsel for the plaintiffs himself accepts, the court will only exercise its powers under this heading very rarely, and will require the clearest possible demonstration from the party seeking discovery that it is necessary for the fair disposal of the application. I say this for two reasons. In the first place, the court is naturally reluctant to place such a burden on a defendant who disputes the basic jurisdiction of the court, for the reasons put forward by counsel for the defendant. Secondly, applications under Ord 12, r 8 are a fairly common feature of court business, most particularly in the Commercial Court when dealing with applications to set aside leave granted ex parte under Ord 11 for service out of the jurisdiction, and they are normally dealt with by a hearing on affidavit evidence (see The Supreme Court Practice 1988 vol 1, para 12/7–8/5). It would be most undesirable, and productive of extra delay and unnecessary expense, if applications for discovery were to become a common feature in such cases.”

David Steel J endorsed this approach after the CPR came into force, when he said in Harris v The Society of Lloyds [2008] EWHC 1433 (Comm) at paragraph 10 that:-

“It is well established under the previous procedural rules that the power to order disclosure for the purpose of interlocutory proceedings should be exercised sparingly and then only for such documents as can be shown to be necessary for the just disposal of the application: Rome v Punjab National Bank [1989] 2 All E.R. 136. There are good reasons for concluding that the same if not a stricter approach is appropriate under the provisions of CPR”

As to a request for further information, the Practice Direction to CPR 18 states that:-

“A Request should be concise and strictly confined to matters which are reasonably necessary and proportionate to enable the first party to prepare his own case or to understand the case he has to meet.”

As I have explained, the applications made by the claimant are both for Further Information and for Specific Disclosure. The requests for further information are very detailed and complex, containing more than 80 requests and sub-requests. In order to see if it is necessary to make any of the orders sought, I have to consider how much information relevant to the jurisdiction issue, the claimants or their legal advisers now possess.

My starting point is that the claimants in the Vava action and in the Qashani action are mine workers, who had been and might perhaps still be working in AASA’s goldmines in South Africa. They are highly unlikely to have had any information or knowledge whatsoever relating to the issues of where AASA’s “central administration” was located.

In the case of the claim made on behalf of Jessica Young, her father and litigation friend has made a helpful witness statement in which he refers to his knowledge of the mode of operation of Anglo American Group and to the control of its subsidiaries. He also refers to some information relating to these issues supplied by unnamed people, who have or who have had personal knowledge of it. The claimant’s solicitors have adduced some evidence in the form of either hearsay evidence or of general opinion evidence about the way in which managerial decisions are made affecting subsidiaries in South Africa. Very little, if any, of this information is likely to be of anything other than of very limited probative value in supporting the claimants’ case that AASA’s “central administration” was actually located in England, but what is clear is that more relevant information is needed as the requests from the claimants’ solicitors have not provided much information.

There is a striking absence of any direct and first-hand evidence on the claimants’ claim, which is at least arguable that the location of the “central administration” of AASA is in London. AASA alone has access to the material relevant to determining where AASA’s managerial and entrepreneurial decisions were taken. There is also a massive disparity in the financial resources open to the parties. So it becomes necessary to ascertain if there is anything which it is necessary to order AASA to supply from the matters which are the subject matter of the present application, At present, if no orders are to be made requiring AASA to produce documents or further information, there is a very great risk that the claimants will be contesting the jurisdiction issue at an unfair disadvantage and that must be addressed.

In determining this matter, I am very conscious of the overriding objective in the CPR which is to deal with cases justly which “includes, so far as practical (a) ensuring that the parties are on an equal footing... and (d) ensuring it is dealt with expeditiously and fairly…” (CPR 1.1). That means that on this application, I should make such orders as are “necessary” to enable the claimants to obtain the information required to pursue their claims in relation to the arguable issues but not to carry out a fishing exercise.

The claimants are seeking both further information and specific discovery and in my view, the starting point should be to consider ordering appropriate disclosure at this stage, because the relevant documents disclosed would have the advantages for the claimants over answers to requests for further information in that first they are contemporaneous, second they cannot be said to be self – serving, and third they frequently provide the information needed more speedily and more economically. That is why our predecessors when conducting the pre-CPR system decided that a good rule of thumb was that interrogatories which are very similar to the Part 18 requests sought by the claimant should only be ordered after appropriate disclosure, because appropriate disclosure frequently obviated the need for further information. In reaching that conclusion to only make orders for specific disclosure, I am very conscious that in King v Telegraph Group Limited [2005] 1 WLR 2282, Brooke LJ observed that in making orders of the kind sought by the claimants, the emphasis is on strictly what is necessary and proportionate to the avoidance of disproportionate expense.

I therefore propose to order disclosure of the appropriate documents and I have considered, but have rejected, the possibility of also ordering AASA to provide the information sought. I have reached that conclusion for two reasons.

First, it might well be that a very large number of the requests for information would be answered by a perusal of the appropriate documents. Not surprisingly, there is very much duplication between the Part 18 requests and the requests for specific discovery. As examples of the duplication there are many questions asked about Mr Gomwe’s role as executive director at AASA, while there are also specific applications for specific disclosure of documents such as his contract of employment, his job description and minutes of meetings which he attended relating to AASA. I do not want to extend the length of this judgment by giving more examples of the duplication of the areas covered by the applications for specific disclosure of documents and the applications for further information to explain why I regard some of the information sought as not being necessary at all at this stage. Therefore, in my view, it is not necessary now to order AASA to provide information, which might be provided to the claimants in the documents in relation to which I propose solely to order specific disclosure.

A second reason why I do not consider it necessary to order AASA to give further information at this stage is that it might well be (as is often the case) that when appropriate disclosure has taken place, the focus of the claimants’ case might change and therefore it would be premature and unnecessary to order the supply of further information as well as appropriate disclosure at this stage.

In deciding that I should order appropriate specific disclosure at this stage, I regard it as both necessary and proportionate to do so, but if the requisite information does not become available as a result of that order, it is always open to the claimants to make a further application for disclosure or indeed for other information to which they are entitled provided that their application reaches the threshold which I have described.

It is agreed that the operative date for determining the “domicile” of AASA is at the latest 1 October 2011, and therefore the orders, which I will make will only relate to matters occurring at or before that time. In appropriate cases, my provisional view, which is reached in the absence of previous submissions on this issue, is that disclosure should only cover the period of 2 years prior to that time, but in default of agreement on this, I will be content to consider further submissions on this. I now turn to consider each of the items in respect of which specific disclosure is sought bearing in mind the principles set out above and that the issue with which they are concerned is by whom and where management and entrepreneurial decisions relating to AASA were taken.

The case for the claimants is that they contend that the business of AASA extended beyond that of a holding company and includes such duties as holding monitoring and reviewing the South African investments of the Group as well as coordinating, delivering, implementing and progressing Group strategy in South Africa. So the case for the claimants is that the review of these annual accounts would enable the claimants to ascertain whether they record activities that go beyond the scope of a holding company. The scope of those activities would throw light on the management/entrepreneurial decisions, which AASA was required to take and this would be relevant to the issue of AASA’s domicile. In my view, this request reaches the threshold for making an order for disclosure of these parts of AASA’s annual accounts, which show the activities of AASA and where management decisions were taken. There might well be many aspects of the accounts, such as auditor’s fees which would be of no relevance to the jurisdiction issue and therefore the order for disclosure has to be so limited.

. Although these documents are publicly available for companies incorporated in the United Kingdom, that is not the position in South Africa. The case for the claimants is that the Articles of Association are highly relevant to their case that the Board of AASA was not making the key management/ entrepreneurial decisions relating to AASA, but that the responsibility for making those decisions had been delegated to AA plc. This is relevant to the factual inquiry that will have to be carried out by the courts to determine the “central administration” of AAplc. Indeed Mr. Layton contended that what might be stated in the Articles of Association might be relevant as the German Federal Labour Court found in the decision 5AZR60/06 to which I have already referred. I therefore propose to order disclosure of the appropriate Articles of Association of AASA in force from 1 October 2009 until 1 October 2011 as that they relate to the powers of the directors to take management/entrepreneurial decisions relating to AASA and/or their duties or powers to delegate such powers as well as any limitations on the decision-making power of the Board of Directors of AASA.

As to the claim for the disclosure of the Memorandum of AASA, this request in so far as it relates to those in force from 1 October 2009 until 1 October 2011 reaches the threshold test for disclosure in so far as there is anything in it which relates to the nature and scope of AASA’s business as well as by whom and where management/ entrepreneurial decisions relating to AASA are taken relating to the objects of AASA’s business.

The claimants contend that AA plc, ExCo and/or GMC exercise control over AASA and that the GMC exercises powers delegated to it by the Board of AA plc. The claimants’ case is that decisions in relation to AASA’s business are taken other than in its Board meetings, and that such decision-making occurs in London. The limited number of Board meetings of AASA and the large size of its business are said to be supportive of this point. Mr. Layton contends that it is common for a large corporate Group to record the powers delegated throughout the Group in a common document, which is sometimes referred to as a “delegation matrix”.

Mr. Philipps contends that this category is very wide and I would agree that the disclosure should be limited to documents, which specify the powers, and responsibilities reserved or delegated by AASA to AA plc or to Ex Co or to the GMC in respect of managerial/ entrepreneurial decisions made or to be made by AASA from 1 October 2009 until 1 October 2011. The “central administration” issue does not require any wider form of disclosure.

The claimants base this claim on the fact that an Authority Policy Manual exists for at least one important subsidiary of AASA, namely Anglo Platinum Ltd and that this manual provided detailed information regarding the delegation of powers from the Anglo Platinum Ltd’s board to its officials. The case for the claimants is that the roles of Mr Gomwe, Mr Medori, and Ms Carroll are of central concern to the claimants’ case on jurisdiction because they exercised powers over AASA from London. I have already explained that Mr. Gomwe stated in a witness statement that AASA is ultimately a wholly-owned subsidiary of AA plc “which obviously means that the company has regard to the policy and strategy of AA plc in making its own decision”.

I have no idea what a Policy Manual would cover, but it is quite probable it would deal with any matters other than delegation of power from the company’s Board to its officials. I therefore propose to make an order for disclosure of the Authority policy manual of AASA insofar as it concerns the delegation of powers concerning the making of management/entrepreneurial decisions relating to AASA from AASA to Mr Gomwe, to Mr Moduri and to Ms Carroll or any entity for whom they worked as well as where and how those powers were to be exercised in respect of the period from 1 October 2009 until 1 October 2011.

This request is very wide and would cover non-management decisions of AASA but it would reach the threshold for ordering disclosure only insofar as it relates to by whom and where management/ entrepreneurial decisions relating to AASA were taken from 1 October 2009 until 1 October 2011.

Mr. Philipps in his submissions said, “there is no question that the person with the most serious responsibilities in AASA is the Chief Executive Mr. Gomwe”. The claimants contend that in performing his functions at AASA, Mr Gomwe was overseen by AA plc and/or its chief executive officer Ms Carroll rather than only or mainly by AASA’s Board in Johannesburg. I have already explained that Mr. Gomwe stated in his witness statement that AASA “has regard to the policy and strategy of AA plc in making its own decisions”. This statement suggests that he might possibly have some contractual obligation along those lines.

I am concerned that there must be much material in those contracts, which is of no relevance to the issues raised on the jurisdiction claim, such as his holiday entitlement, bonus payments, sickness entitlement and restrictive covenants. In those circumstances, AASA should disclose matters stated in Mr. Gomwe’s contract and his job description relating to his duties in respect of management/entrepreneurial decisions relating to AASA, including any duty to liaise, consult with and report to AA plc in relation to any such matters in respect of the period from 1 October 2009 until 1 October 2011 and the place where he had to liaise, consult with and report to AA plc. I therefore limit the order for disclosure in that way.

Mr. Moduri is a director of AASA and it has stated in response to a request from the claimants’ solicitors that he attends meetings of the Board and contributes as a director. The minutes of the Board meetings, which have been disclosed, show that he was absent from each of them and so there is an issue as to what he does in his role as a director of AASA. Significantly, he is also Finance Director of AA plc and a member of the GMC and of Ex Co and Chairman of AA plc’s Investment Committee. It would seem that he might well have been exercising some control over AASA or have been involved in making decisions on its behalf.

It has been said by AASA that Mr Gomwe unquestionably has the most senior responsibilities in AASA and the claimants’ case is that entrepreneurial decisions in respect of those responsibilities were taken in London. The precise nature of the communication between Ms Carroll and the other London-based directors or managers or committees on the one hand and Mr Gomwe on the other is of critical importance to the claimants’ case regarding AASA’s business as well as how, by whom and where entrepreneurial decisions of AASA are made. So disclosure must be ordered of such parts of these minutes, which relate to management/entrepreneurial decisions taken or to be taken relating to AASA in respect of the period from 1 October 2009 until 1 October 2011.

In so far as these documents show where and how and by whom entrepreneurial/ management decisions relating to AASA are taken, the application should be granted in respect of the period from 1 October 2009 until 1 October 2011. I fully appreciate that there must be many matters set out in those documents, which do not relate to these critical issues and therefore disclosure should not be ordered of them.

For the avoidance of any doubt, I should stress and repeat that I have reached all my conclusions on the basis of the evidence before me. The evidence at the substantive hearing might well be very different from that adduced at that the present hearing.