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England and Wales Court of Appeal (Civil Division) Decisions
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Cite as:  EWCA Civ 1156,  WLR(D) 430
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS IN LIVERPOOL
TECHNOLOGY AND CONSTRUCTION COURT (QBD)
MR JUSTICE TURNER
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE UNDERHILL
(Vice-President of the Court of Appeal (Civil Division))
LADY JUSTICE CARR
| MUNICIPIO DE MARIANA
|- and -
|(1) BHP GROUP PLC (formerly BHP BILLITON PLC)
(2) BHP GROUP LTD
Charles Gibson QC, Daniel Toledano QC, Shaheed Fatima QC, Nicholas Sloboda and Max Scholte (instructed by Slaughter and May) for the Respondents
Hearing date: 22nd June 2021
Crown Copyright ©
Sir Geoffrey Vos, Master of the Rolls (delivering the judgment of the court):
The essential facts
The judge's judgment
Introduction to the judge's judgment
"The task of ensuring that fair reparation is made to the victims covered by the CPA umbrellas is a vast one. One purpose of Renova is to meet this challenge and to this end it has made payments in response to a very considerable number of claims for reparatory relief … Nearly half of the claimants in this case have already received financial payments from Renova. Nevertheless, serious criticisms of its constitution and its speed and fairness of operation have been levelled against it from many quarters."
The judge also records that some 70 other CPA proceedings have been commenced in the aftermath of the dam collapse. The CPA proceedings brought by the Minas Gerais State Public Prosecutor had been concluded by a final settlement agreement.
"Notwithstanding the existence of the CPAs, individuals are not precluded from bringing their own claims outside their structure. As at the beginning of 2019, no fewer than 67,316 of the claimants in the instant litigation had admitted to having already brought individual lawsuits in Brazil. About 20,000 claimants have conceded that these cases have been resolved in Brazil."
The judge's decision on abuse of process
i) - covered what the judge described at , referring to Henderson, as "multiplicity of litigation". An important feature in the judge's thinking in  and elsewhere is that claimants joining the English litigation were assured that doing so would not prevent them from claiming also in Brazil: many had already done so, and there was no assurance that many more might not. The phrase "cross-contamination" appears to refer to the risk of decisions taken in the Brazilian litigation, both procedural and substantive, undermining or otherwise affecting decisions taken in the English litigation (and no doubt vice versa, but the judge's focus was on the English proceedings).
ii) At - the judge identified a number of "further challenges" which the English court would face if the claims were to proceed, which would, as he put it at , make them "irredeemably unmanageable" – or, even if that were not the case, would place a disproportionate burden on the resources of the English courts . His principal reason for that conclusion, stated at , is that there would be "an immense pool of claimants with grossly disparate interests", requiring a huge number of lead cases (he also noted at  that the population of the pools would be constantly changing) and that continuing developments in Brazil would mean that there was a real prospect of "almost interminable transatlantic iteration" – i.e., as we understand it, "cross-contamination". At - he identified, but explicitly as secondary considerations, various other practical problems that would be caused by the facts that the claims would be governed by Brazilian law and that most of the documentary and witness evidence would be in Portuguese, together with difficulties in taking evidence from Brazilian witnesses.
iii) At - the judge pointed out that the claimants would not make full recovery in the English proceedings because of the need to pay a success fee: he referred to allegations that this may not have been properly explained to claimants, but he said that he would not take that possibility into account.
iv) He concluded at :
"It follows that I am satisfied that it has been clearly proved that these claims amount to an abuse of the process of the court. In the words of Lord Bingham in Barker , they amount to 'a use of the court process for a purpose or in a way which is significantly different from the ordinary and proper use of the court process'."
"137. … I do not doubt that the average potential value of these claims is very likely to be higher than those of the majority of other claimants. Nevertheless, to allow them to proceed in this jurisdiction would still give rise to the acute risk of irreconcilable judgments and, in a broader sense, conflicting developments in the parallel jurisdictions.
138. By way of example, many of the Municipalities and utility companies stand to benefit from the Renova programmes of infrastructure and environmental works. The defendants have assisted me with a schedule of such programmes linking them to the claims which are sought to be advanced in the English proceedings. It reveals a significant overlap.
139. In any event, the 58 are not precluded from seeking redress on their own account in the courts of Brazil outside the scope of the 20bn and 155bn CPAs."
"I pay full regard to the challenges which face those wishing to bring claims in Brazil. It would not be appropriate in the context of an application in which the calling and cross-examination of witnesses, both lay and expert, is precluded to descend into any detailed adjudication upon the precise extent of such challenges but I do not underestimate them. As I have already noted, for the purposes of this judgment, I am prepared to accept that the subjective concerns of the witnesses are genuine. On the other hand, I am entirely satisfied that their confidence that anything of value is to be achieved in England is illusory [emphasis supplied]."
"141. My primary conclusion, on all of the evidence, is that these proceedings amount to a clear abuse of process. In particular, the claimants' tactical decision to progress closely related damages claims in the Brazilian and English jurisdictions simultaneously is an initiative the consequences of which, if unchecked, would foist upon the English courts the largest white elephant in the history of group actions [emphasis supplied].
142. In addition, it would, in my view, be manifestly unfair to the defendants to be required to engage in massively expensive and protracted litigation devoid of any realistic promise of substantive advantage to the claimants [emphasis supplied]."
- consider and reject the option of merely staying the proceedings pending resolution of the 155bn CPA.  reads:
"It must follow that, having adjudged these claims to amount to an abuse of the process of the court, I have further determined that the only proper procedural consequence of this is that they should be struck out. In reaching this view, I cannot emphasise too strongly that I am not in any way whatsoever seeking to trivialise the hardships suffered by the many victims of the collapse of the dam. But what they need and deserve is a mechanism by which to obtain a fair and just outcome. I am entirely satisfied that this would not be served up at the table of an English Barmecide feast."
As appears from the phrases that we have italicised, the judge's focus in - is not on unmanageability but on futility – that is, that the English proceedings will achieve nothing of value.
i) Unmanageability: the judge's finding at - is that the English proceedings were "irredeemably unmanageable" () because of the problems of irreconcilable judgments and cross-contamination arising from the parallel proceedings in Brazil. It is true that the judge does not conclude his analysis with that finding. However, at  of his PTA judgment he described it as "the point of central importance to which all other considerations are of secondary significance". As a matter of legal analysis, he treats this as a form of Henderson abuse, arising out of the "multiplicity of proceedings" (see [32(1)] above).
ii) Irrelevance of risk of not obtaining redress in Brazil: the judge's findings on this aspect are summarised at  above.
iii) Futility: as noted at - above, the aspect on which the judge focused in his concluding paragraphs on abuse is that the proceedings will achieve nothing of value for the claimants. He evidently has in mind, though he does not expressly invoke it, the decision in Wyeth.
The judge's decision on article 34
The judge's decision on forum non conveniens
The judge's decision on a case management stay
"The Judge's overall approach to the Defendants' abuse of process application at - was novel, unprecedented, wrong in law and wrong as a matter of principle."
i) The unmanageability point, whereby the judge held that the fact that the proceedings were irredeemably unmanageable could, in law, make them an abuse of process: grounds 1, 4 and 5, and particulars ,  and .
ii) The jurisdictional abuse point, whereby the judge elided the principles applicable to abuse of process with those applicable to jurisdiction: grounds 1, 2 and 3 and particular .
iii) The article 4 point, whereby the judge erected impermissible barriers to access to the court: grounds 1, 4 and 5, and particular .
iv) The Henderson point, whereby the judge failed to make distinctions between the types of claimants, particularly the 58 institutional claimants that had not claimed in Brazil: grounds 1 and 6 and particular .
That structure is not really articulated by headings in the Grounds, but the PTA skeleton and Mr Dunning's oral submissions broadly approached the matter on that basis.
The appellate judge's main reasons for refusing permission
"1. By his order, … the judge … struck out the claims or alternatively stayed them. His reasons for so doing are set out in a careful judgment at  EWHC 2930 (TCC) running to 265 paragraphs.
2. There were two broad reasons for his conclusions. The first was that these claimants could make claims - and in most/many cases were making such claims - in Brazil, where there was also a special compensation scheme in place. The second was that (as summarised at ) he was entirely satisfied that the claims were 'irredeemably unmanageable if allowed to proceed any further in this jurisdiction'.
3. Notwithstanding the careful attention paid by the judge to the law and the detailed submissions made by the parties, the claimants seek to challenge the judge on each and every point on which he found against them. By their grounds of appeal, they want to relitigate the entire eight day hearing in a new forum. That may be a reflection of what the judge elsewhere described as the 'chronic forensic hyperactivity' endemic in this dispute, but it is impermissible. The hearing before the judge was, in the words of Lewison LJ in Fage, 'the first and last night of the show'.
4. To criticise the judge for every single conclusion, accepting and conceding nothing, reveals a complete lack of focus or discernment on the part of the claimants. It suggests that they have no individual points which are strong or clearly arguable; that all they can do is attack everything in the hope that something will stick. That is borne out by the proposed Grounds of Appeal in respect of the substance of the judge's conclusions. There is nothing there that leads me to think, even for a second, that the judge applied the wrong principles or came to any conclusions which he was not entitled to reach. On the contrary, I regard the judgment as impeccable. These claims were a paradigm example of an abuse of process.
5. Accordingly, the substantive appeal has no prospect of success. I deal very briefly with the individual grounds."
The applicable principles
The principles applicable to reasons for the refusal of PTA
"19. In any case where a judge refuses permission to apply for judicial review on the papers he or she must of course give reasons. It is common, both in the Administrative Court and the Upper Tribunal, for those reasons to be given in extremely summary form. That may be acceptable in cases where the claimant has the right to renew the application – though even then the reasons should be sufficient to show with sufficient particularity why permission has been refused. But where the application is certified as TWM, so that the claimant has reached the end of the road (subject to appeal), peculiar care must be taken to ensure that all the arguments raised in the grounds are properly addressed. This is not just for the important reasons of principle discussed in Flannery v Halifax Estate Agents Ltd  1 WLR 377 and in the many other authorities to the same effect. There is the further point that if permission to appeal is then sought from this Court, real difficulties can be caused if the judge refusing permission at first instance has not given adequate reasons, particularly since the option of directing an oral hearing is not open.
20. It does not follow that the reasons for refusing permission need always be lengthy. On the contrary, conciseness is a virtue, and if a ground can properly be disposed of adequately in a sentence or two so much the better. But what is necessary depends on the case. All the claimant's points must be identified and addressed. If there are professionally pleaded grounds, those grounds should be taken in turn. If, however, as is alas too often the case, the grounds are discursive or repetitious, it is the Judge's responsibility to analyse them into their component parts and say why each fails to give the claimant a realistic prospect of success (unless the case is one where disposing of one ground renders it unnecessary to consider the others)."
The principles applicable to applications to re-open under CPR 52.30
"The Court of Appeal or the High Court will not reopen a final determination of any appeal unless—
(a) it is necessary to do so in order to avoid real injustice;
(b) the circumstances are exceptional and make it appropriate to reopen the appeal; and
(c) there is no alternative effective remedy."
Paragraph 2 provides that paragraph 1 applies equally to the determination of an application for PTA.
"10. The note in the White Book Service 2018 describing the scope of the rule states, at paragraph 52.30.2:
'… Rule 52.30 is drafted in highly restrictive terms. The circumstances described in r.52.30(1) are truly exceptional. Both practitioners and litigants should note the high hurdle to be surmounted and should refrain from applying to reopen the general run of appellate decisions, about which (inevitably) one or other party is likely to be aggrieved. The jurisdiction can only be properly invoked where it is demonstrated that the integrity of the earlier proceedings … has been critically undermined. … .'
11. We would endorse those observations, which are justified by ample authority in this court. The relevant jurisprudence is familiar, but the salient principles bear repeating here.
12. Giving the judgment of the court in In re Uddin (A Child)  1 WLR 2398 ["Re Uddin"], Dame Elizabeth Butler-Sloss, the President of the Family Division, observed that the hurdle to be surmounted in an application to re-open under CPR 52.17 (now CPR 52.30) was much greater than the normal test for admitting fresh evidence on appeal. She observed (in paragraph 18 of her judgment) that the Taylor v Lawrence jurisdiction 'can in our judgment only be properly invoked where it is demonstrated that the integrity of the earlier litigation process, whether at trial or at the first appeal, has been critically undermined'. And she added this (in paragraph 22):
'22. … In our judgment it must at least be shown, not merely that the fresh evidence demonstrates a real possibility that an erroneous result was arrived at in the earlier proceedings (first instance or appellate), but that there exists a powerful probability that such a result has in fact been perpetrated. That, in our view, is a necessary but by no means a sufficient condition for a successful application under CPR r.52.17(1). It is to be remembered that apart from the requirement of no alternative remedy, "The effect of reopening the appeal on others and the extent to which the complaining party is the author of his own misfortune will also be important considerations": Taylor v Lawrence  QB 528, para 55. Earlier we stated that the Taylor v Lawrence jurisdiction can only be properly invoked where it is demonstrated that the integrity of the earlier litigation process, whether at trial or at the first appeal, has been critically undermined. That test will generally be met where the process has been corrupted. It may be met where it is shown that a wrong result was earlier arrived at. It will not be met where it is shown only that a wrong result may have been arrived at.'
13. In Barclays Bank plc v Guy (No.2)  1 WLR 681 ["Barclays v. Guy"] Lord Neuberger M.R. said (in paragraph 36 of his judgment):
'36. … If a party fails to advance a point, or argues a point ineptly, that would not, at least without more, justify reopening a court decision. If it could be shown that the judge had completely failed to understand a clearly articulated point, it is possible that his decision might be susceptible to being reopened (particularly if the facts were as extreme in their nature as a judge failing to read the right papers for the case and never realising it). … .'
14. In Lawal v Circle 33 Housing Trust  EWCA Civ 1514 ["Lawal"], Sir Terence Etherton, then the Chancellor of the High Court, summarized the principles relevant to an application under CPR 52.30 (in paragraph 65 of his judgment):
'65. … The following principles relevant to [the] application [of CPR 52.17, as the relevant rule then was] to this appeal appear from Re Uddin (A Child) … and Guy v Barclays Bank plc … . First, the same approach applies whether the application is to re-open a refusal of permission to appeal or to re-open a final judgment reached after full argument. Second, CPR 52.17(1) sets out the essential pre-requisites for invoking the jurisdiction to re-open an appeal or a refusal of permission to appeal. More generally, it is to be interpreted and applied in accordance with the principles laid down in Taylor v Lawrence … . Accordingly, third, the jurisdiction under CPR 52.17 can only be invoked where it is demonstrated that the integrity of the earlier litigation process has been critically undermined. The paradigm case is where the litigation process has been corrupted, such as by fraud or bias or where the judge read the wrong papers. Those are not, however, the only instances for the application of CPR 52.17. The broad principle is that, for an appeal to be re-opened, the injustice that would be perpetrated if the appeal is not reopened must be so grave as to overbear the pressing claim of finality in litigation. Fourth, it also follows that the fact that a wrong result was reached earlier, or that there is fresh evidence, or that the amounts in issue are very large, or that the point in issue is very important to one or more of the parties or is of general importance is not of itself sufficient to displace the fundamental public importance of the need for finality.'
Sir Terence Etherton C went on to say (in paragraph 69):
'69. … [The] appellants' reasons for re-opening the application for permission to appeal Judge May's possession order amount, on one view, to no more than a criticism that Arden LJ's decision to refuse permission to appeal was wrong. That is not enough to invoke the Taylor v Lawrence jurisdiction.'
15. For completeness, there should be added to that summary of the principles in Lawal the requirement that there must be a powerful probability that the decision in question would have been different if the integrity of the earlier proceedings had not been critically undermined."
"(1) A final determination of an appeal, including a refusal of permission to appeal, will not be reopened unless the circumstances are exceptional (Taylor v Lawrence).
(2) There must be a powerful probability that a significant injustice has already occurred, and that reconsideration is the only effective remedy (Taylor v Lawrence, … Re Uddin).
(3) The paradigm case is fraud or bias or where the judge read the wrong papers (Barclays Bank v Guy, Lawal).
(4) Matters such as the fact that a wrong result was reached earlier, or that there is fresh evidence, or that the amounts in issue are very large or the point in issue is important, are not of themselves sufficient to displace the fundamental public importance of the need for finality (Lawal).
(5) There must be a powerful probability that the decision in question would have been different if the integrity of the earlier proceedings had not been critically undermined (Goring…)."
"That may be so; but it seems to us that the difficulty of succeeding in a such an application is merely the inevitable consequence of the principles to which we have referred."
"In our view, an application for reconsideration of a refusal of permission to appeal involves a two-stage process. First, the court should ask whether the Lord or Lady Justice of Appeal who refused permission to appeal grappled with the issues raised by the application for permission, or whether they wholly failed so to do. Secondly, if the Lord or Lady Justice of Appeal did grapple with the issues when refusing permission to appeal, the court should ask whether, in so doing, a mistake was made that was so exceptional, such as wholly failing to understand a point that was clearly articulated, which corrupted the whole process and where, but for that error, there would probably have been a different result."
Preliminary points on the appellate judge's reasons in this case
Did the appellate judge grapple with the claimants' essential challenges to the judge's judgment?
Abuse of process
1. Did the appellate judge grapple with the unmanageability point?
"The Judge erred in law and principle by treating (what he held to be) the unmanageability and burdensome nature of the claims in England as being by itself a basis for striking out the claims as an abuse of process, irrespective of the ability of the Claimants to obtain full redress in Brazil (see Ground 4). Insofar as he held, in the alternative, that the proceedings should be struck out as an abuse of process because it was clear that, whatever challenges were faced by Claimants in obtaining relief from other parties in Brazil, they would 'on balance' face greater challenges in their proceedings against the Defendants in England, the Judge erred in law and principle by substituting his own view for the views of the Claimants; it was not the function of the Court to second-guess the Claimants' decision as to which of several potentially liable parties they should sue (see Ground 5). These were also novel bases for striking out proceedings, the effect of which was to erect impermissible barriers on access to the court."
"Insofar as he held that the proceedings should be struck out as an abuse of process because they would be unmanageable and/or because of the burden they would impose on the English court system -, the judge erred in law and in principle, took into account irrelevant matters and failed to consider relevant matters."
The actual content of that ground appears in particulars  and . Particular  challenges the premise on which the judge proceeded – i.e. that the proceedings were "unmanageable" – and particular  challenges the conclusion that he draws from that premise. We take them in turn.
The Judge erred in law by approaching the question of whether the Claimants' claims are abusive by first seeking to assess whether it was practicable to manage the claims and treating (what he held to be) the unmanageability and burdensome nature of the claims in England as by itself a basis for striking out the claims, irrespective of the ability of the Claimants to obtain full redress in Brazil. The Judge's approach erected an impermissible barrier on access to the court: see [Ground 1, particular 2 above].
That raises both the unmanageability point, namely that it was impermissible to dismiss the claim on the basis of "unmanageability" because of the burden it places on the English system, and the article 4 point that a properly served claim ought not to have been struck out where full redress might not be available anywhere else (in this case, in Brazil), so raising a barrier to access to the courts.
"The Judge made further errors of law and fact, in finding that that the proceedings would be "not merely challenging but irredeemably unmanageable"  by reason of the size of the Claimant cohort and/or the fact of proceedings in Brazil:
(a) the Judge proceeded from a demonstrable misunderstanding of the evidence that these proceedings were 'unique in a number of respects' including that 'the action in England would involve closely related group claims moving forward in parallel in two different jurisdictions with many of the same claimants in each seeking identical remedies in England and Brazil concurrently' . Ground 2 is repeated;
(b) the Judge erred in law by proceeding on the basis that the prospect of there being developments in foreign proceedings is in itself capable of rendering English proceedings 'unmanageable' -, ;
(c) the Judge erred in law by proceeding on the basis that the size of this Claimant cohort is capable of leading to a conclusion that proceedings will be 'unmanageable' -;
(d) the Judge erred in law by proceeding on the basis (as is the effect of -) that there is a burden on the Claimants, in seeking to resist a strike out for abuse of process prior to the service of a Defence, to prove the existence of a 'workable procedural mechanism for resolving the claims'; and
(e) the Judge was wrong in principle to find that there are no case management powers available to the Court (including those mentioned at , and those referred to at - and Appendix 6 of the Claimants' skeleton argument, to which the Judge made no reference in his judgment) which would enable the claims to be tried;
(f) the Judge was wrong in principle to conclude that proceedings were 'irredeemably' unmanageable even before jurisdiction has been established, before pleadings have been concluded, and before the parties have been called upon (pursuant to their obligation to the Court) to co-operate in proposing sensible directions for the future management of the action."
"12. Ground 4: This criticises the judge's conclusion that the proceedings would be unmanageable. This ground is misconceived. That was a view to which the judge was quite entitled to come on the material before him: as I have already indicated, I consider it was the correct conclusion. It was plainly, therefore, a matter which was relevant to the application to strike out as an abuse.
13. One strand of the criticism is that the judge should have considered this 'at a glance' rather than undertaking a detailed analysis. As the judge said with considerable restraint at  of his second judgment, this is 'an unpromising ground for challenge'. The judge undertook a detailed analysis which had a clear conclusion. The claimants may not like the conclusion, but they cannot criticise the judge for undertaking the analysis."
i) The appellate judge does not address the point of principle that unmanageability is not a proper ground on which to strike out a claim for abuse of process. All he says is that "the judge's conclusion that the proceedings would be unmanageable … was a view to which [he] was quite entitled to come on the material before him". That does not address the question of whether that conclusion could justify a strike-out either at all or in circumstances where, as the claimants submit, it has not been shown that full redress has been secured in Brazil.
ii) The appellate judge's statement that the judge was entitled to conclude that the proceedings were unmanageable is merely conclusory and does not address the six points made under particular .
"This is a criticism that the judge compared the difficulties with proceeding in England with the proceedings in Brazil. So he did, but that was a secondary observation. What mattered was his conclusion that proceedings in England would be 'irredeemably unmanageable'. The judge's conclusion was not linked to whether or not the claimants would obtain full redress in Brazil."
The claimants may not agree with that, but Mr Dunning did not suggest it did not address the point being made in ground 5, and in our view it plainly does.
2. Did the appellate judge grapple with the jurisdictional abuse point?
"[The Judge] … created a novel concept of 'jurisdictional abuse' and failed to respect the mandatory nature of Art. 4 and the conditions for a stay in Art. 34 Brussels Recast and/or to apply the common law principles set out in Spiliada Maritime v Cansulex  AC 460."
"Insofar as he held that the proceedings should be struck out as an abuse of process because of the risk of irreconcilable judgments and the likelihood of 'cross-contamination' of parallel proceedings in England and Brazil, at  to , the Judge erred in law, took into account irrelevant matters, proceeded on a demonstrable misunderstanding of the relevant evidence, and/or failed to take into account relevant matters."
(1) Particular  contends that to strike out a case because of the risk of irreconcilable judgments is inconsistent with article 4. This essentially repeats the point of principle made in particular .
(2) Particular  argues that the judge's finding of a risk of irreconcilable judgments is flawed because:
(i) the parties in the Brazilian and the English proceedings are different (save to the extent that a minority of the claimants have brought individual claims in Brazil, though not against either the English and Australian companies); and
(ii) there were serious doubts over whether the main proceedings in Brazil – i.e. the 155bn CPA – would proceed at all, and, if it did, it was very unlikely to determine the liability even of BHP Brazil as an indirect polluter.
(3) Particular  contends that the judge's finding of a risk of cross-contamination between the Brazilian and the English proceedings is flawed because:
(i) it only arose in the case of the minority of claimants who had brought proceedings in Brazil (or received a payment from Renova) and could not justify the striking out of claims by those who had not;
(ii) it was open to the court to require the relevant minority of claimants to abandon their proceedings in Brazil as a condition of pursuing proceedings in England (and indeed this had been offered by leading counsel for the claimants);
(iii) most of the claimants who had recovered compensation in Brazil had only recovered a modest amount for water interruption, and payments from Renova were not the result of litigation.
The point made in particular  raises the challenge as a matter of principle to treating the existence of parallel proceedings as justifying a finding of abuse of process. Particulars  and , by contrast, are directed to the judge's specific findings of a risk of irreconcilable judgments and/or cross-contamination.
"Insofar as he held that the proceedings should be struck out as an abuse of process because of the disadvantages of proceedings in England as opposed to Brazil ( and -), the Judge erred in law and took into account irrelevant matters."
The particulars can be summarised as follows:
(1) Particular  argues that the judge's approach undermines the second limb of Spiliada, namely whether there is a real risk that substantial justice would not be obtained against the defendant in the alternative forum.
(2) Particular  pleads that the Judge was wrong to take into account the secondary factors to which we have referred at [32(ii)] above.
As with ground 2, those grounds comprise both a point of principle about "jurisdictional abuse" as a basis for striking out (particular ) and a more particular point about the judge's findings (particular ).
"6. Ground 1: The complaint is that the judge's approach to the abuse of process application was somehow novel and not in accordance with the law. That is wrong. The judge applied the principles from well-known authorities to the facts of this particular case. The judge did not create a category of 'jurisdictional abuse'. He simply concluded that these proceedings were pointless and wasteful, principally because of the myriad individual and group claims already being pursued in Brazil.
7. The suggestion that the judge should not have dealt with the abuse argument first is misconceived: it was front and centre in the disputes before the court. Moreover, in respect of Grounds 1-3, I echo the second judgement (on costs and refusing permission to appeal  EWHC 146 (TCC)) at . The claimants' mechanistic division between what they consider to be the matters relevant to the forum non conveniens issues, on the one hand, and the abuse arguments, on the other, has led to a wholly artificial analysis of the central issues raised by these applications. This unreality pervades many of the individual grounds. It is to be deprecated.
8. For the avoidance of doubt, I agree with and endorse - of the second judgment, and do not repeat it here.
9. Ground 2: The complaint is that the judge wrongly took into account the likelihood of irreconcilable judgments and the risk of contamination of parallel proceedings. I disagree. The judge properly took cross-contamination and the like into account in coming to his conclusions. Moreover, as he rightly said at  of his second judgment, there was no justification for drawing a distinction between those claimants who had already brought claims in Brazil and those who had not.
10. Ground 3: The complaint is that the judge took into account the disadvantages of proceeding in England as opposed to Brazil. That is incorrect. The judge expressly said at  of his substantive judgment that he would strike the claims out as an abuse of process without considering these additional practical burdens.
11. The claimants' unrealistic division of the issues into separate and sealed categories arises again."
"There could be no justification for drawing a distinction between those claimants which had already brought claims in Brazil and those which had not. As noted in the judgment, with but one exception, every claimant reserved the right in future to maintain parallel proceedings in both jurisdictions and, indeed, was encouraged to participate in the English litigation upon formal, written assurances from their solicitors that this would remain the case. Leading counsel for the claimants was not prepared to accede to the suggestion that the claimants should make any concessions on this position until, perhaps, they had already succeeded in resisting the defendants' applications (by which time, of course, the incentive to make any such concession would have all but evaporated)."
3. Did the judge grapple with the article 4 point?
"An abuse of process is of concern not merely to the parties but to the court. It is no longer the role of the court simply to provide a level playing field and to referee whatever game the parties choose to play upon it. The court is concerned to ensure that judicial and court resources are appropriately and proportionately used in accordance with the requirements of justice."
4. Did the appellate judge grapple with the Henderson point?
"The Judge failed to distinguish between different categories of Claimant and in particular, insofar as he struck out the proceedings on the grounds that the Claimants had taken a 'tactical decision to progress closely related damages claims in the Brazilian and English jurisdictions simultaneously'  or otherwise based on the rule in Henderson v Henderson, the Judge erred in law, proceeded on a demonstrable misunderstanding of the evidence, took into account irrelevant matters and/or failed to take into account relevant matters."
"In striking out as an abuse of process, at -, the claims of at least 58 large corporate and municipality Claimants who could not claim compensation from Renova or rely on any future judgment in the 155bn CPA concerning the liability of other parties, which were by far the most valuable claims, the Judge erred in law and took into account irrelevant matters."
The relevant parts of - are set out at  above.
"20. The Judge erred in law in holding that these 58 Claimants' claims fell to be struck out because they 'would still give rise to the acute risk of irreconcilable judgments and, in a broader sense, conflicting developments in the parallel jurisdictions' . Ground 2 is repeated.
21. The Judge erred by taking into account and weighing in favour of the Defendants' application the following factors, which were irrelevant, even if they were correct:
(a) that the 58 Claimants might benefit in a tangential way from some of Renova's infrastructure programmes and environmental works (a premise upon which the Judge proceeded at  without any review of the evidence); and
(b) that the 58 Claimants would be able to bring their claims in the courts of Brazil outside the scope of the 20bn CPA and the 155bn CPA  (a premise on which the Judge proceeded without any review of the Claimants' evidence as to why this was not a practical possibility)."
"Ground 6: This is a criticism that the judge wrongly took into account the claimants' tactical decision to progress closely-related damages claims simultaneously in Brazil and England. There is nothing in this criticism. At - of the judgment, the judge set out the extent to which the claimants had sought simultaneous redress, the judge having previously noted the individual Claimants had been assured that bringing proceedings in England would not preclude them from pursuing parallel remedies in Brazil. Furthermore, to the extent that the judge is criticised for taking into account the principles in Henderson v Henderson, I reject that criticism. That is plainly a relevant consideration when considering striking out duplicatory proceedings."
"Ground 7: This is a complaint that at -, the judge struck out the claims of 58 large corporate and municipality claimants who could not benefit from certain schemes in Brazil. In my view, this is an attack on the judge's findings of fact which is impermissible. Moreover, the judge was right to say at  of his second judgment that he could not ignore the fact that conflicting developments in parallel jurisdictions would render the proceedings completely unmanageable. All of the 58 claimants referred to have made or are entitled to make claims of one sort or another in Brazil. The fact that those claims may fall outside the special compensation scheme is nothing to the point."
 of the judge's PTA judgment, which the appellate judge there endorses, adds nothing to what the appellate judge says in the last three sentences.
Conclusions on whether the appellate judge failed to grapple with the claimants' essential points of appeal
The jurisdictional grounds
Conclusions on the application to re-open under CPR part 52.30
i) The essential points that the judge failed to address go to the heart of the claimants' challenge to the judge's decision on abuse of process. It was wrong for the appellate judge to have failed to grapple with the contentions that neither unmanageability nor the ability to bring proceedings elsewhere are grounds, in law, for striking out proceedings, properly brought and served.
ii) These failures, in our judgment, can properly be regarded as critically undermining the integrity of the process for granting PTA, in the sense in which that phrase is used in the authorities.
iii) In our view, if the appellate judge had grappled with the grounds in question there was a "powerful probability" that the outcome would have been different, and that he would have granted PTA. We have reached the conclusion, as appears below, that PTA should have been granted.
iv) Finality is of fundamental importance in this context, but in the most unusual circumstances of this case, we have no doubt that the integrity of the PTA process has been undermined, and re-opening is justified on a proper application of the authorities we have cited.
v) We have taken into account, but not regarded as determinative, that the claim itself is of exceptional importance, both because of the number of claimants and the importance to them of obtaining such compensation as they may prove to be entitled to. It is also fair to say that the issues raised by BHP's strike-out application are of wide general importance.
vi) Although the appellate judge's failure to appreciate that some of the points which he took from the judge's PTA judgment were no longer being pursued by the claimants is entirely venial given that he was not supplied with the draft grounds, we can understand the claimants' concern that it may have influenced his approach to the grounds that were before him.
Disposal and concluding observations
i) In Rasheed v. Secretary of State for the Home Department  EWCA Civ 1493 Moore-Bick LJ said, at :
"Grounds of appeal are intended to be short, succinct documents which identify as briefly as possible the respects in which it is said that the court below … erred. If drafted as the rules intend and require, they provide the court and the parties with a clear and concise statement of the issues that will arise on the appeal and to which argument will be directed. They are not intended to be a vehicle for describing in general terms the circumstances giving rise to the appeal; nor are they intended to serve as a vehicle for setting out the appellant's arguments or submissions. That is the function of the skeleton argument. To include material of that kind in the grounds of appeal renders them unhelpful both to the parties and to the court."
(2) In Goring, the Court of Appeal said at :
"… [A]dvocates settling grounds of appeal ought to take care to draft each ground crisply and clearly as a properly formulated ground of appeal. Discursive, repetitive or prolix grounds are unhelpful and add unnecessarily to the burdens of a judge dealing with an application for permission to appeal. Each main issue in the proposed appeal should be succinctly identified in a separate ground. Where this has not been done, it is likely to be more difficult for an applicant to complain that a particular point has not been addressed by the judge."
(3) In Harverye v. Secretary of State for the Home Department  EWCA Civ 2848, Hickinbottom LJ said at -:
"56. … [I]t is incumbent upon the Appellant to set out in his grounds of appeal, clearly and 'as concisely as practicable', the relevant part of the decision and the way(s) in which it is said to be wrong or unjust (paragraph 5(1) of CPR PD 52C). No more is required of grounds of appeal. Indeed, no more may be incorporated in them.
57. The grounds of appeal are the well from which the argument must flow. The reasons why it is said the decision is wrong or unjust must not be included in the grounds, and must be confined to the skeleton argument (paragraph 5(2) of CPR PD 52C). …"
i) The grounds of appeal are an essential analytical tool for the court, to enable it to identify the issues which it is being asked to decide: they are not a vehicle for advocacy, which is the role of the skeleton argument.
ii) The starting point in every case must be for the appellant to think through carefully what specific errors the court below is alleged to have made. Once these errors have been identified, they need to be clearly and concisely articulated. In the unlikely event that the grounds are numerous, they must be presented in a structure which makes clear how they inter-relate.
iii) Each ground of appeal must be separately numbered, and the particular passages in which the judge appealed is said to have gone wrong must be specifically identified.
iv) The purpose of the grounds of appeal is to identify the points on which permission to appeal is sought, not to argue those points. Supporting submissions belong in the skeleton argument.
v) It follows that grounds of appeal should be short; in many cases, a few sentences will suffice. In a complex case, grounds of appeal may be longer, but clarity and concision should never be compromised.
UPON the Claimants' CPR 52.30 application dated 20 April 2021 to reopen the decision of Lord Justice Coulson dated 23 March 2021 that refused the Claimants' application for permission to appeal to the Court of Appeal against the Order of Mr Justice Turner dated 26 January 2021 (sealed on 28 January 2021);
AND UPON the Order of Mr Justice Turner dated 26 January 2021 that struck out, or alternatively stayed, the Claimants' claims;
AND UPON the judgment of Mr Justice Turner dated 9 November 2020  EWHC 2930 (TCC);
AND UPON the further judgment of Mr Justice Turner dated 29 January 2020  EWHC 146 (TCC);
AND UPON the Claimants' grounds of appeal dated 15 February 2021 (the 'Grounds of Appeal'), which are numbered Ground 1 to 15;
AND UPON considering the parties' submissions in writing, including the e-mail from the Defendants' counsel sent on 26 July 2021;
AND UPON hearing from Leading Counsel for the Claimants and Defendants on 22 June 2021;
IT IS ORDERED THAT:
1. The Claimants' application is allowed pursuant to CPR 52.30. The decision of Coulson LJ dated 23 March 2021 is reopened.
2. The Claimants shall have permission to appeal on all grounds, on the following condition:
Unless payment of the full amount of the costs ordered by paragraph 2 of the order of Turner J dated 29 January 2021, plus interest, is made to the Defendants by no later than 4 p.m. on 3 September 2021 the appeal will stand dismissed.
Save that if by that time (4pm on 3 September 2021) the Claimants file with the Court, and serve on the Defendants, written representations, together with any evidence relied on, showing cause why the said condition should not apply the matter will be determined by this Court at a hearing on 10.30 a.m. on 4 October 2021 (estimate 30 minutes); in the event of such representations being filed, the Defendants shall file and serve any written representations and evidence in response by no later than 4 p.m. on 24 September 2021.
3. The costs of and occasioned by the Claimants' CPR 52.30 application dated 20 April 2021 and the costs of and occasioned by the hearing on 22 June 2021 shall be costs in the appeal.
4. The Defendants' time for filing a Respondent's Notice is extended to 4 p.m. on 30 September 2021; liberty to either party to apply to vary or revoke this paragraph of this order.
REASONS FOR PARAS. 2-4
(1) As regards para. 2, no application has been made for a stay of the costs order made by Turner J. The difficulties to which the Claimants refer, in the most general terms, in their submissions, cannot constitute justification for their failure to comply with an order of the Court; nor indeed do they so suggest. In those circumstances, and having regard to the other matters referred to in the Defendants' submissions, the Court takes the clear provisional view that it is appropriate that it should be a condition of the appeal proceeding that the full amount outstanding be paid by the deadline specified. However, it is right that the Claimants should have the opportunity to try to persuade the Court otherwise.
(2) As regards para. 3, the Court's criticisms of the Defendants' grounds of appeal are not such as to justify depriving them of the costs of the appeal should they succeed in upholding Turner J's order.
(3) As regards para. 4, the Defendants' application for an extension appears reasonable, but it has been made subject to a liberty to apply, partly because that is formally appropriate in circumstances where the Claimants have not had an opportunity to respond and partly because it is possible that the Defendants may wish to reconsider the timetable if the Claimants seek a show cause hearing in accordance with para. 2.
Note 1 This is a reference to a story in the Arabian Nights (the story of the barber’s sixth brother (night 33)). A member of the wealthy Barmakid family invites a starving man to eat with him but then presents him with nothing but a series of empty plates. [Back] Note 2 See Wingfield at .
[Back] Note 3 This is in the part of his reasons dealing withforum non conveniens, where he refers to particular  of the Grounds. [Back] Note 4 Mr Gibson pointed out that a similar point is made, parenthetically, at  of the PTA skeleton, but it seems clear that it was the judge’s judgment that the appellate judge had in mind. [Back] Note 5 We have summarised - of the judge’s judgment, to which the appellate judge there refers, at  above. [Back]
Note 1 This is a reference to a story in the Arabian Nights (the story of the barber’s sixth brother (night 33)). A member of the wealthy Barmakid family invites a starving man to eat with him but then presents him with nothing but a series of empty plates. [Back]
Note 2 See Wingfield at . [Back]
Note 3 This is in the part of his reasons dealing withforum non conveniens, where he refers to particular  of the Grounds. [Back]
Note 4 Mr Gibson pointed out that a similar point is made, parenthetically, at  of the PTA skeleton, but it seems clear that it was the judge’s judgment that the appellate judge had in mind. [Back]
Note 5 We have summarised - of the judge’s judgment, to which the appellate judge there refers, at  above. [Back]