One issue that repeatedly arises in corporate law discourse is the extent to which a parent company can be liable for the acts or omissions of its subsidiary. As each company in a corporate group has its own corporate personality, the general response is that parent companies are not liable for the acts/omissions of their subsidiaries. Liability could be imposed on a parent company if the corporate veil of the subsidiary can be pierced, but since the Supreme Court decision of Prest v Petrodel Resources Ltd narrowed the instances in which the corporate veil can be lifted (and narrowed the definition of what constitutes a lifting of the veil),this will be very difficult to establish in practice.
An alternative method is to establish that a parent company owes a duty of care to those affected by the relevant acts/omissions of the subsidiary. This was argued successfully in Chandler v Cape plc, and the High Court has recently revisited this method in His Royal Highness Okpabi v Royal Dutch Shell plc.
Shell Petroleum Development Co of Nigeria Ltd (‘SPDC’) was a Nigerian-based company that conducted onshore oil operations in Nigeria. SPDC was a subsidiary of Royal Dutch Shell plc (‘RDS’), a company based in the UK. It was alleged that oil spills from SPDC’s pipelines had caused ‘serious and ongoing pollution and environmental damage’ to wide areas of the Niger Delta and the waters of the Delta itself. The defendants did not dispute this (although they did attribute other causes to the damaged pipelines, such as locals damaging the pipes to steal the oil).
The claimants (of which there were around 42,500) commenced proceedings against both SPDC and RDS but, for our purposes, it is the claim against RDS which is of interest. The claimants argued, inter alia, that RDS owed a duty of care to those persons affected by the activities of SPDC, and therefore it should be liable for the damage caused.
The claimants’ case failed and the High Court held that RDS did not owe them a duty of care. Fraser J stated that the starting point was the three-part test in Caparo Industries plc v Dickman, namely forseeability, proximity, and reasonableness.Fraser J stated, at paras 114-5) that the claimants would have difficulty establishing the second and third parts of the test.
Fraser J also examined the various authorities, notably Chandler. In Chandler, Arden LJ identified four factors that could indicate the existence of a duty of care, namely:
(1) the businesses of the parent and subsidiary are in a relevant respect the same; (2) the parent has, or ought to have, superior knowledge on some relevant aspect of health and safety in the particular industry; (3) the subsidiary’s system of work is unsafe as the parent company knew, or ought to have known; and (4) the parent knew or ought to have foreseen that the subsidiary or its employees would rely on its using that superior knowledge for the employees’ protection.
Fraser J stated that, when approaching these four factors, a two-stage approach is to be adopted, namely ‘[t]he first is whether the parent company is better placed than the subsidiary. The second is, if the finding is that the parent company is better placed, whether it is fair to infer that the subsidiary will rely upon the parent.’ He went on to state that the four factors were:
descriptive rather than exhaustive, the presence of some, or all, of those factors, would bring any particular case more closely within the scope of a duty of care owed by a parent company, the existence of which has already been recognised by the Court of Appeal. The higher the number of those four factors that are present, the more likely that will be.
Fraser J held (at para 116) that none of the four factors identified by Arden LJ were present here. He also stated that ‘a duty of care is more likely to be found in respect of employees, a defined class of persons, rather than others not employed who are affected by the acts or omissions of the subsidiary.’
This case provides additional (albeit limited) guidance on the factors to be applied when determining whether a parent owes a duty of care to persons affected by the actions/omissions of its subsidiaries. Clearly, cases in this area are highly fact-specific and the relationship between RDS and SPDC was of notable importance. This is only a first instance decision and the claimants have indicated that they intend to appeal. This blog post will be updated if permission to appeal is granted and if an appeal decision is handed down.