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B.A.T. Industries Plc v Windward Prospects Limited and Appleton Papers Inc

20th Dec 2013

Gavin Kealey QC and Tim Jenns acted for the Claimant, B.A.T. Industries Plc (“BAT”) in a substantial jurisdiction application.

BAT’s claim is for a declaration of its rights of indemnity against the First Defendant (“Windward”), an English company, and the Second Defendant (“API”) a company incorporated in Delaware in respect of liabilities potentially exceeding US$250 million.

The liabilities against which BAT claims to be indemnified are principally its potential liability (together with API) to a US company named NCR Corporation (“NCR”). BAT’s potential liability to NCR arises in respect of NCR’s own liability to the US Government under US environmental legislation concerning the contamination and pollution of the Fox River in Wisconsin by polychlorinated biphenyls (“PCBs”), largely as a result of the manufacturing and recycling of carbonless copy paper.

At a 2-day jurisdiction hearing before Mr. Justice Field, BAT successfully resisted an application by API to challenge the jurisdiction of the English Courts on the grounds that the New York Courts were a more convenient forum for the trial of the action.

Mr. Justice Field held that the prospect of BAT having to bring substantially identical actions in two jurisdictions, in London against Windward and in New York against API, with the risk of inconsistent decisions, decisively tipped the scales in favour of London being the appropriate forum for the claim against API.

To view the judgment please click here.