The Court of Appeal held that an English trading company would only be treated as having been present and a possible a party to an action abroad if it had established a fixed place of business there at its own cost and either it or its representative had carried on business there for more than a minimal time. By way of personal observation and to address the title directly Adams v Cape Industries was good for business in precisely the same way that chocolate is good for children. However, whether its contribution to the development of the law was positive or negative or a blend of the two is contestable. 6 Adams v Cape Industries Plc [1990] Ch 433 (CA). The principles of the single economic entity and agency, notwithstanding the fact that they have been narrowly defined and limited in scope, in theory allow the court to circumvent the Salomon principle of the separate corporate entity, irrespective of the absence of mala fides or bad faith. Dine Janet, Company Law, 5th ed, (2005) Palgrave Macmillan, Sealy L S, Sealy: Cases and Materials in Company Law, 7th ed (2001) LexisNexis UK, Smith & Keenan’s Company Law For Students, Keenan & Bisacre, FT Pitman Publishing, Company Law Fundamental Principles, Stephen Griffin, Longman. Lord Justice Slade Lord Justice Mustill and Lord Justice Ralph Gibson. The requirement, under conflict of laws rules, was either that Cape had consented to be subject to Texas jurisdiction (which was clearly not the case) or that it was present in the US. Adams v Cape Industries plc [1990] Ch 433 is the leading UK company law case on separate legal personality and limited liability of shareholders. It is also described as ‘piercing’, ‘lifting’, ‘penetrating’, ‘peeping’ or ‘parting’ the veil of incorporation. As to condition (iii), we do not accept as a matter of law that the court is entitled to lift the corporate veil as against a defendant company which is the member of a corporate group merely because the corporate structure has been used so as to ensure that the legal liability (if any) in respect of particular future activities of the group (and correspondingly the risk of enforcement of that liability) will fall on another member of the group rather than the defendant company. Judgment was still entered against Cape for breach of a duty of care in negligence to the employees. However, in our judgment, Cape was in law entitled to organise the group's affairs in that manner and (save in the case of A.M.C. 433. Woolfson was distinguished from DHN Food Distributors by the Law Lords on the grounds that the company owning the property was only partially, rather than wholly, owned by the claimant company. In view of this, Mr Chandler began proceedings against Cape Products' parent company, Cape PLC. Employees of Texas company started to become ill with asbestos. Trustor, alongside cases such as North West Holdings v Backhouse (2001)[9], clarifies that the piercing of a corporate veil can only be justified in three categories. Rather than blindly apply fundamental rules of English law Denning sought ways to circumnavigate them or elaborate on them where he deemed that such would be in the interests of justice in a case. [5] See for elaboration: Hicks Andrew & Goo S.H., Cases & Materials on Company Law, 5th ed, (2004) Oxford University Press. to which special considerations apply) to expect that the court would apply the principle of. Some people are claiming this is an attack on the separate legal personality principles, fundamental to company law. Adams v Cape Industries, although ostensibly helpful to holding companies and corporate groups on its particular facts, represents an sclerotic and inflexible stance in general, and one from which companies may ultimately come to suffer as the law and commerce develops around it. The judgement given in Trustor AB v Smallbone and Others (No 2) (2002)[8] appears to confirm that the modern Courts will not countenance any further erosion of Salomon’s fundamental principle of English company law that a company is to be regarded as a legal entity with a separate legal personality, distinct from that of its members. Moreover, the House of Lords indicated that the decision in DHN Food Distributors was incorrect. Three arguments were raised (all unsuccessfully) in an effort to establish that Cape had been present in the United States. Adams v Cape Industries Plc [1990] Ch 433 (CA) The Albazero [1977] AC 774 (HL) Chandler v Cape Plc [2012] 1 WLR 3111 (CA) Conway v Ratiu [2005] EWCA Civ 1302 (CA) Daimler Co Ltd v Continental Tyre and Rubber Co (Great Britain) Ltd [1916] 2 AC 307 (HL) DHN Food Distributors Ltd v Tower Hamlets LBC [1976] 1 WLR 852 (CA) In VTB Capital plc v Nutritek International Corp, Lord Neuberger remarked, "In addition, there are other cases, notably Adams v Cape Industries plc Ch 433, where the principle was held to exist." Mr. Morison urged on us that the purpose of the operation was in substance that Cape would have the practical benefit of the group's asbestos trade in the United States of America without the risks of tortious liability. The Adams decision is clearly advantageous to companies seeking to avoid liabilities in certain situations, but it is far less useful and arguably even obstructive to those companies seeking to enforce rights in certain situations. [6] In this case the company’s trading premises where compulsorily acquired. The first decision was delivered by the Court of Appeal in DHN Food Distributors v Tower Hamlets London Borough Council. They sued Cape and its subsidiaries in a Texas Court. At the end of 2005, the circumstances in which the courts will apply the three exceptions stated in Trustor remain unclear. Adams v Cape Industries plc Ch 433 is the leading UK company law case on separate legal personality and limited liability of shareholders. On this ground it is argued that Adams v Cape Industries is far from a panacea for business, there is a darker, rigid face to the decision that will deny many companies rights and freedoms that they have a good practical and moral case to argue for. You should not treat any information in this essay as being authoritative. Whether or not such a course deserves moral approval, there was nothing illegal as such in Cape arranging its affairs (whether by the use of subsidiaries or otherwise) so as to attract the minimum publicity to its involvement in the sale of Cape asbestos in the United States of America. The company’s products were marketed in the United States of America through a complicated network of subsidiaries and associated companies. Whether or not this is desirable, the right to use a corporate structure in this manner is inherent in our corporate law. In closing it is argued that the flexible, equitable attitude expressed in DHN Food Distributors is still to be preferred over the black-letter dogma of Adams v Cape Industries and that a far stronger moral case, which should surely be the basis of all law, can be advanced for the former than for the latter. That said the principle of lifting the corporate veil appears to have been limited to cases in which there has been a fraudulent attempt to conceal the identity of the incorporator in order to circumnavigate or deflect certain legal obligations. Background. The Court of Appeal found that, on grounds of pure legal doctrine, it was not entitled to lift the corporate veil against a defendant company, which was a member of a corporate group, simply on the grounds that the corporate structure had been used so as to ensure that legal liability in regards to the particular future activities of the group would fall on another member of the group rather than on the defendant company. Cases like Holdsworth, Scottish Coop and DHN were distinguishable on the basis of particular words on the relevant statutory provisions. *You can also browse our support articles here >. Appeal from – Adams v Cape Industries plc ChD 1990 The piercing of the veil argument was used to attempt to bring an English public company, which was the parent company of a group which included subsidiaries in the United States, within the jurisdiction … This may be so. It is submitted that the title under discussion is a matter of opinion rather than a statement of fact. What is fundamentally wrong with the notion of adopting such a rule on a case-by-case basis and allowing justice to succeed in each individual case? Like DHN before it, Woolfson involved the compulsory acquisition of trading premises by a local authority and a claim for the loss of business by the trading company, notwithstanding the fact that the company did not own the premises itself. Judgment. Adams v Cape Industries plc. [2] In VTB Capital plc v Nutritek International Corp, Lord Neuberger remarked, "In addition, there are other cases, notably Adams v Cape Industries plc [1990] Ch 433, where the principle [of piercing the corporate veil] was held to exist (albeit that they include obiter observations and are anyway not binding in this court). Hicks Andrew & Goo S.H., Cases & Materials on Company Law, 5th ed, (2004) Oxford University Press. Lord Denning’s approach may now have fallen out of vogue in the courts, but it is submitted by this commentator that it is indeed appropriate to the strive for the development of the principle of piercing the corporate veil where justice demands it. This set the scene for Adams several years later, which was decided at a point after Denning’s retirement when his influence on the law had waned considerably. ‘Lifting the veil’ refers to the situations where the judiciary or the legislature has decided that the separation of the personality of the company and the members is not to be maintained. It is submitted that Denning’s approach and attitude to Salomon at least brought with it the universal advantage of flexibility, which is perhaps something that should be elevated above those considerations of certainty, predictability furthered by dogmatic adherence to principle. The case also addressed long-standing issues under the English conflict of laws as to when a company would be resident in a foreign jurisdiction such that the English courts would recognise the foreign court's jurisdiction over the company. It remains to be ultimately decided by the courts as to whether it is desirable to reduce their power in such a way. They shipped it to Texas, where a marketing subsidiary, NAAC, supplied the asbestos to another company in Texas. Prest v Petrodel Resources Ltd & ors [2013] UKSC 34 Wills & Trusts Law Reports | September 2013 #132. Chandler v Cape: Piercing the Corporate Veil: Lessons in Corporate Governance; Authors. iv) On 17 July 1956, Cape decided to sell the assets of its asbestos business at Uxbridge to Cape Products and to change the name of Cape Products to its existing name: there could be no other reason for a sale followed by a change of name other than that Cape wished Cape Products to be seen as part of the larger Cape group. It should be noted that the operation of the Salomon principle will not always be to the advantage of the dominant individual within the company. In Chandler v Cape plc [2012] EWCA Civ 525, the claimant contracted asbestosis through exposure to asbestos dust during the course of his employment with Cape Building Products Ltd. However, the litigants were subsequently unsuccessful in enforcing the judgment against Cape in the English Courts. It noted that DHN was doubted in Woolfson. Adams is undoubtedly a seminal case. In that specific regard it is submitted that the ruling was highly beneficial to companies with a certain agenda, but whether that was the original intention of the Salomon court is dubious. To address the statement posed in the title directly, it is clear that Adams v Cape Industries was indeed an excellent decision for companies wishing to manipulate the structure of corporate groups for the purpose of diverting rights and liabilities. v Cape Industries Plc & Capasco Ltd. This article explores Adams v. Cape (1990), in which American plaintiffs attempted to persuade the English courts to lift the corporate veil and impose liability for industrial disease on Cape Industries, a leading U.K. asbestos manufacturer. The employees of that Texas company, NAAC, became ill, with asbestosis. For that purpose, the claimants had to show in the UK courts that the veil of incorporation could be lifted and the two companies be treated as one. Free resources to assist you with your legal studies! The fundamental principle established in Salomon in relation to single companies was applied in the context of a group of companies by the Court of Appeal in the case under discussion in this paper, Adams v Cape Industries plc (1990)[3]. In Chandler v Cape plc, the Court of Appeal considered whether a parent company was liable for the exposure of its subsidiary company's employee to asbestos dust.Applying the common law principles established by the House of Lords in Caparo v Dickman [1990] 2 AC 605 (foreseeability; proximity; and whether it was fair, just and reasonable to impose a duty) the Court of … For example in tort in Lubbe v Cape Plc (2000), the parent company owed a duty of care to anybody injured by subsidiary company in a group and in Chandler v Cape Plc (2011) duty of … In the context of Salomon, Denning recognised the importance of the principle but saw weakness and iniquity in its blinkered and slavish application. The case also addressed long-standing issues under the English conflict of laws as to when a company would be resident in a foreign jurisdiction such that the English courts would recognise the foreign court's jurisdiction over the company. This is the first time an employee has successfully established liability to him from the parent company. Cape Industries plc was a UK company, head of a group. In practice the so-called ‘business perspective’ is comprised of many interests, some collective but some diverging and many competing with each other. Therefore it is submitted that the fact that one shareholder wholly controls a company in practice is not at law a sufficient reason for ignoring the legal personality of the company. VAT Registration No: 842417633. Adams V Cape Industries Plc - Judgment. Adams v Ursell [1913] Adamson v Motor Vehicle Insurance Trust [1956, Australia] ... Chandler v Cape Plc [2012] Chandler v Webster [1904] Chaplin v Hicks [2011] Chappel v Nestle [1960] Chaudhary v Yavuz [2011] Chaudry v Prabhakar [1989] Cheltenham & Gloucester Building Society v Norgan [1996] The case also addressed long-standing issues under the English conflict of laws as to when a company would be resident in a foreign jurisdiction such that the English courts would recognise the foreign court's jurisdiction over the company. Chandler v Cape plc [2011] EWHC 951 (QB) is a UK company law and English tort law case concerning the availability of damages for a tort victim from a parent company, when the victim is harmed by the operations of a subsidiary company. In Chandler v Cape plc, it was held that the corporate veil was not relevant in tort cases, thus effectively circumventing Adams. In Lubbe v Cape plc[1] Lord Bingham held that the question of proving a duty of care being owed between a parent company and the tort victims of a subsidiary would be answered merely according to standard principles of negligence law: generally whether harm was reasonably foreseeable. As discussed by Hicks and Goo, the first of these was a single economic unit argument contending that Cape and its subsidiaries were in reality one economic unit which should be treated by law as such. A recent Court of Appeal in Chandler v Cape plc [2012] EWCA Civ 525 decision has found that a parent company owed a duty of care to its subsidiary employees. [4] For further comment see: Hicks Andrew & Goo S.H., Cases & Materials on Company Law, 5th ed, (2004) Oxford University Press. Issue. In Chandler v Cape plc it was held that the corporate veil was not relevant in tort cases, thus effectively circumventing Adams. Business Law. Continue Reading. The case also addressed long-standing issues under the English conflict of laws as to when a company would be resident in a foreign jurisdiction such that the English courts would recognise the foreign court's jurisdiction over the company. Quoting the eminent academic authority Gower, Lord Denning argued that there was evidence of a general trend to disregard the separate legal entities of various companies within a group, and to deal instead collectively with the economic entity of the whole group. The fundamental principle established in Salomon in relation to single companies was applied in the context of a group of companies by the Court of Appeal in the case under discussion in this paper, Adams v Cape Industries plc (1990) [3]. In practical effect, the Court of Appeal dismissed the contention that a corporate veil should be pierced merely because a group of companies operated as a single economic entity in terms of business reality. That said, the separate legal persona of a company is sometimes conceptualised as a “veil of incorporation” and the general rule is therefore that it will not be pierced or lifted by a court so as to apportion the liabilities or rights of a company to its shareholders. It has in effect been superseded by Lungowe v Vedanta Resources plc, which held that a parent company could be liable for the actions of … View all articles and reports associated with Adams v Cape Industries plc [1990] Ch 433. Its subsidiaries mined asbestos in South Africa. Do you have a 2:1 degree or higher? They shipped it to Texas, where a marketing subsidiary, NAAC, supplied the asbestos to another company in Texas. Assurance Co.(1925) [2] recognition of the separate corporate personality caused the company’s director and major shareholder to suffer huge losses after he insured company property erroneously in his own name. In the case of tort victims, the House of Lords suggested a remedy would, in fact, be available. The Court of Appeal unanimously rejected that Cape should be part of a single economic unit, that the subsidiaries were a façade and that any agency relationship existed on the facts. The veil of incorporation is thus said to be lifted. 7 Prest v Petrodel Resources Ltd [2013] UKSC 34, [2013] 2 AC 415. Th… Cape Industries (the parent company) allowed default judgement to be obtained against it in US by not submitting a defence. Cape Industries plc was a UK company, head of a group. Court of Appeal (Civil Division) On Appeal from the High Court of Justice. These include: (a) where the company is a sham or façade; (b) where the company is an instrument in impropriety; and (c) where it is necessary to do so in the interests of justice. 27 July 1989. On a strict application of the Salomon principle Cape was held not to have been present in the United States and as a consequence the judgments delivered in the American courts were deemed to be unenforceable in England. Published: 3rd Jul 2019 in Once registration has been successfully completed a new legal person is created: its legal liabilities are totally separate from those of its members. The court separately had to consider whether Cape had established a presence within the United States, such that the English court should recognise the jurisdiction of the United States over Cape, and enforce a US judgment against it (one of the criticisms made of the decision by US lawyers is that the Court of Appeal fundamentally misunderstood the nature of the federal system in the US, but that misunderstanding does not affect the general principles laid down by the court). In the Supreme Court of Judicature. But could they be enforced in England? The opposing decision to DHN Food Distributors was the ruling of the House of Lords in the case of Woolfson v Strathclyde Regional Council[7]. Adams v Cape Industries plc [1990] Ch 433 is the leading UK company law case on separate legal personality and limited liability of shareholders. Adams v Cape Industries Plc [1990] Ch. In Chandler v Cape plc, it was held that the corporate veil was not relevant in tort cases, thus circumventing Adams. View examples of our professional work here. Cape Industries, a company registered in England, was engaged in mining asbestos in South Africa. Cape was joined, who argued there was no jurisdiction to hear the case. He was not the kind of man to let strict legal principle get in the way of the ‘right’ decision in a particular case. Mr Chandler was diagnosed with asbestosis in 2007. “‘Adams v Cape Industries’ was an excellent decision from a business perspective”. The ‘business perspective’ mentioned in the title entails a broad and amorphous concept and perhaps it would be foolish to seek to assert that there is indeed one collective or unitary ‘business perspective’ in reality. The Court of Appeal has upheld a decision of the High Court which found that a parent company owed a direct duty of care to an employee of one of its subsidiaries, in Chandler v Cape [2012] EWCA (Civ) 525. Prior to the seminal decision of Adams v Cape Industries Ltd the courts were confronted with two opposing decisions, which suggested that the Salomon principle was disposable in the interests of justice and alternatively that it was sacrosanct and deserving of almost universal application. The employees appealed. The Court of Appeal unanimously rejected (1) that Cape should be part of a single economic unit (2) that the subsidiaries were a façade (3) any agency relationship existed on the facts. 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