(A) Control: ''Generally speaking, the courts are more inclined, in appropriate circumstances, to lift the veil of corporateness where questions of control are in issue than where a question of ownership arises.''[25] The control should be of a long-term nature: the test will be inapplicable even though controls exist in particular or several transactions of its subsidiary.[26] Simultaneously, it should be of an all-round nature: it remains inapplicable provided the control does not extend to day-to-day running of business; even though overall control over subsidiary''s general policy exists. The meaning of all-around is a kind of control in every respect. Furthermore, it should be of such a close nature that the subsidiary can be regarded as merely an agent. It is important to note that the mere fact that one company is the subsidiary of another, even a ''wholly owned'' subsidiary, is not by itself sufficient to make the subsidiary an agent of its holding company.[27]
(B) Overlaps: As summed up by Prof. Wood, ''overlaps'' may include, inter alia, overlap in meetings, directors, business activity, owners, management, bank account, control of employees, books, contracts, insurance policies, advertising, corporate acts, officers, assets, records… and the like.[28]
(C) Agreement: It has been held in Cape Industries that it, in absence of an express agreement[29], will be difficult to establish such an agency relationship.[30]
(v) Liabilities for tort in groups
In Lubbe v Cape plc[31], their Lordships upheld the action brought against a parent company where the actual damage originated from the activities of its subsidiaries.[32]
It seems that it is easier to claim for the liabilities for tort than the requirements in agency argument. Knowing the wrongful operation of and sufficient control over its subsidiary (either de facto or de jure) are obviously lighter burdens of proof for outsiders than what are required mentioned above in the agency argument. It is submitted that, as a public policy, the protection for ''employees'' or ''persons in the vicinity of its factory''[33] relieved the claimants in Lubbe v Cape plc from such heavy proving burden as in commercial disputes circumventing the corporate veil. After all protection of environment and employees in torts and the like are popular trend all over the world which renders the entities in a group comparatively more likely to be exposed to corporate tort regardless of corporate personalities. Tendency to pierce in the very circumstances is just a reflection of the court''s attitude towards the trend. No space of application of such doctrine exists, in my opinion, for the greedy merchants in the course of business for monetary relief.
