The claimants wanted to bring proceedings in England against the second defendant, a Nigerian subsidiary company, for damages in respect of pollution and environmental damage, allegedly caused by its activities in Nigeria. Claim forms were served on the first defendant, the second defendant’s English parent company, alleging that it owed the claimants a common law duty of care for the acts and omissions of the second defendant. Permission was granted to serve claim forms on the second defendant out of the jurisdiction, pursuant to the jurisdictional gateway in paragraph 3.1(3) of Practice Direction 6B, on the ground that there was between the claimant and the first defendant a legitimate claim, to which the second defendant was a necessary and proper party. The defendants challenged the court’s jurisdiction, contending that there was no arguable duty of care on the part of the first defendant to the claimants, and, in the absence of any action against the first defendant, there was no connection between England and the claims against the second defendant on which to found the court’s jurisdiction. The defendants applied for declarations that the court had no jurisdiction to try the claims. The judge concluded that there was no arguable case that the first defendant owed the claimants a duty of care and granted the declarations sought.
On the claimants’ appeal—
Held, appeal dismissed (Sales LJ dissenting). In the light of the evidence, none of the matters relied on by the claimants demonstrated a sufficient degree of control of the second defendant’s operations in Nigeria by the first defendant to establish the necessary degree of proximity to support a claim that the first defendant owed the claimants a direct duty of care. Nor, taken cumulatively did they do so. The claimants had not established an arguable case that the first defendant controlled the second defendant’s operations, or that it had direct responsibility for practices or failures the subject of the claim. Further, it would not be fair, just and reasonable to impose a duty of care on the first defendant. The claimants’ claims were bound to fail because it was not arguable that the first defendant owed them a duty of care (paras 127,130, 131, 133, 206, 207, 209).
Richard Hermer QC and Edward Craven (instructed by Leigh Day) for the claimants.
Lord Goldsmith QC and Sophie Lamb (instructed by Debevoise & Plimpton llp) for the defendants.