Case notes - Developments in Corporate Accountability across the Irish Sea: Okpabi v Royal Dutch Shell Plc [2021] UKSC 3

Pagespp 170 - 182
Published date12 January 2022
Date12 January 2022
170
Developments in Corporate Accountability across
the Irish Sea: Okpabi v Royal Dutch Shell Plc
FRANCESCA FARRINGTON*
I. Introduction
Okpabi v Royal Dutch Shell Plc1 (‘Okpabi ’) is the most recent instalment in a series
of United Kingdom Supreme Court (‘UKSC’) judgments that are changing the
landscape of parent company liability for the actions of subsidiaries. Okpabi follows
hot on the heels of the decision in Vedanta Resources Plc v Lungowe
2 (‘Vedanta’).
Both decisions concerned service out of jurisdiction in negligence proceedings
taken against a UK-domiciled parent company, and a non-resident subsidiary. e
Veda nta Court found, and the Okpabi Court conrmed, that the three-step test in
Caparo Industries plc v Dickman3 (‘Caparo’) is no longer applicable, as the liability
of a parent company for the activities of its subsidiaries is not a novel category
in common law negligence. Now, parent company duty of care is determined by
reference to general principles of tort law.4 Following Ved a n t a , the Court has to
consider whether ‘the parent availed itself of the opportunity to take over, intervene
in, control, supervise or advise the management of the relevant operations … of the
subsidiary.’5 Okpabi gives texture to this statement providing a non-exhaustive list
of factors to be considered when determining the extent of a parent company’s duty
of care, including management, group wide policies, control and supervision.
ere are considerable similarities between Irish and English law on the issues
considered in Okpabi, specically, the process for service out of jurisdiction, and
the concept of duty of care. As such, developments across the Irish Sea may prompt
reection within the Irish legal community. Our closest common law neighbour’s
new understanding of a parent company’s duty of care reects the transnational
character of multinational enterprises (‘MNEs’). A continued disparity on these
issues may, unintentionally, transform Ireland into a destination for MNEs seeking
* PhD Candidate at the Faculty of Law, University of Cambridge. With many thanks to the Editorial
Board for their editorial assistance, reviews and comments, and for the insightful feedback from
the anonymous reviewers. Any views or opinions expressed in this article are the personal views and
opinions of the author.
1 Okpabi v Royal Dutch Shell Plc [2021] UKSC 3.
2 Vedanta Resources Plc v Lungowe [2019] UKSC 20.
3 Caparo Industries plc v Dickman [1990] 2 AC 605.
4 Okpabi (n 1) [151].
5 Ved a n t a (n 2) [49].

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