Lungowe v Vedanta Okpabi v Royal Dutch Shell

The recent cases of Lungowe v Vedanta Resources Plc 1 and HRH Okpabi v Royal Dutch Shell Plc 2 demonstrate the application of a technique that I shall term the “jurisdictional one-two punch”.3 Claimants can establish English jurisdiction in two steps. First, striking with a Brussels glove, jurisdiction is established over an “anchor defendant”—often an English-domiciled parent company—using Recast Brussels Regulation 1215/2012 (“Brussels I Recast”), Art.4. Applying Owusu v Jackson,4 there is no discretion to stay this claim on forum non conveniens grounds. Second, striking with a common law glove, this jurisdiction is extended to additional defendants using the “necessary or proper party” gateway.5 Chandler v Cape Plc 6 can be relied upon to facilitate the claim by providing a plausible argument that the English parent company owes a duty of care to the claimant, even where a subsidiary carried out operations. This comment will argue that the parallel application of two jurisdictional regimes makes it too easy to establish English jurisdiction, and too difficult for foreign corporations to manage litigation risk.

One thousand, eight hundred and twenty-six residents of Chingola, Zambia alleged that mining activities in the Nchanga copper mine caused foreign substances to be discharged into waterways, adversely affecting drinking, irrigation and other uses of water in their communities. They framed their action in negligence, nuisance, trespass, the tort in Rylands v Fletcher 7 and breaches of Zambian statute law.8 The jurisdictional one-two punch was used against two defendants: Konkola Copper Mines Plc (“KCM”), the Zambian company operating the Nchanga mine, and Vedanta Resources Plc (“Vedanta”), KCM’s English parent. Against Vedanta, the claimants employed Brussels I Recast, Art.4. Against KCM, the claimants employed the “necessary or proper party” gateway, obtaining permission from Akenhead J to serve the claim form on KCM in Zambia. Vedanta and KCM challenged the exercise of English jurisdiction, but Coulson J refused to stay proceedings.