![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |
England and Wales High Court (Technology and Construction Court) Decisions |
||
|
You are here: BAILII >> Databases >> England and Wales High Court (Technology and Construction Court) Decisions >> Municipio De Mariana & Ors v BHP Group Plc & Anor [2020] EWHC 2471 (TCC) (18 September 2020) URL: https://www.bailii.org/ew/cases/EWHC/TCC/2020/2471.html Cite as: [2020] EWHC 2471 (TCC) |
||
[New search]
[Context
]
[View without highlighting]
[Printable PDF version]
[Help]
E50LV010; HT-2019-LIV-00005 |
TECHNOLOGY AND CONSTRUCTION COURT
QUEEN'S BENCH DIVISION
BUSINESS AND PROPERTY COURTS LIVERPOOL SITTING IN MANCHESTER
IN THE MATTER OF THE FUNDÃO DAM DISASTER
1, Bridge Street West, Manchester, M60 9DJ |
||
B e f o r e :
____________________
MUNICÍPIO DE MARIANA(and the Claimants identified in the Schedules to the Claim Forms) |
Claimant |
|
| - and - |
||
(1) BHP GROUP PLC (formerly BHP BILLITON PLC) (2) BHP GROUP LTD |
First DefendantSeventh Defendant |
____________________
Charles Gibson QC, Shaheed Fatima QC, Daniel Toledano QC, Nicholas Sloboda, Maximilian Schlote, Stephanie Wood and Veena Srirangam (instructed by Slaughter and May) for the
Defendants
Hearing dates: 22, 23, 24, 27, 28, 29, 30, 31 July 2020
Further written submissions: 2 September 2020
____________________
Crown Copyright ©
deemed
to be at 10:30 on Friday 18 September 2020.The Hon Mr Justice Turner:
INTRODUCTION
destroyed,
damaged or contaminated everything in its path. Nineteen people died. Hundreds of thousands were affected and suffered loss. Entire villages were obliterated
defendants
are liable to compensate them for losses sustained as a result of the disaster. The
defendants
resist the claims arguing, in particular, that legal liability to the claimants falls not upon them but upon the shoulders of others including the owner and operator of the dam which was, and is, Samarco Mineração SA ("Samarco"), a Brazilian mining company.
defendant,
BHP Group Plc ("BHP Plc") is a company incorporated in England. The second
defendant,
BHP Group Limited ("BHP Ltd"), incorporated in Australia, is a separate legal entity but linked with BHP Plc in a dual listed company arrangement which provides for a unified management structure. BHP Ltd is the ultimate owner of BHP Brasil. In this context, the
defendants
contend that, under Brazilian law, unlike Samarco, they are not liable to the claimants as polluters or otherwise.
defendants
not only
deny
substantive liability but have invited the Court, in response to applications based upon four distinct procedural grounds, to find that the case against them should be allowed to proceed no further in this jurisdiction. They contend that:
(i) the claims should be struck out or stayed as an abuse of the process of the court;
(ii) the claims against BHP Plc should be stayed by the application of Article 34 of the Recast Brussels Regulations;
(iii) the claims against BHP Ltd should be stayed because England is forum non conveniens;
(iv) alternatively, the claims against both
defendants
should be stayed on case management grounds.
decision
which have given rise to the dispute between the parties which it is the purpose of this judgment to resolve.
BACKGROUND
defendants'
applications give rise. These features, however, go only some way towards justifying the accumulation of the huge swathes of documentation thereafter
deployed
by the parties. The trial bundles comprised 2,085 items set out in 30,015 pages which had been "distilled" into no fewer than five core bundles. There were nine further bundles containing no fewer than 127 authorities. The
defendants'
skeleton argument was 187 pages long and was the product of the collective endeavours of three leading and four junior counsel. The claimants' skeleton argument, the authors of which comprised one leading counsel and eight junior counsel, was 211 pages long and, by the end of the hearing, had been supplemented incrementally by no fewer than 22 appendices the steady flow of which gave rise to a growing frisson of resentment on the part of the
defendants.
Submissions lasted for eight full days and have been recorded in a transcript which is about 1,200 pages in length.
detail
of sharply
declining
significance. I dread to think of the costs which have been expended on this exercise.
"6. It is necessary to say something at the outset about the disproportionate way in which these jurisdiction issues have been litigated. In Spiliada Maritime Corpn v Cansulex Ltd (The Spiliada) [1987] AC 460, 465, Lord Templeman said this, about what was, even then, the disproportionate manner in which jurisdiction challenges were litigated:
"In the result, it seems to me that the solution of disputes about the relative merits of trial in England and trial abroad is pre-eminently a matter for the trial judge. Commercial Court judges are very experienced in these matters. In nearly every case evidence is on affidavit by witnesses of acknowledged probity. I hope that in future the judge will be allowed to study the evidence and refresh his memory of the speech of my noble and learned friend Lord Goff of Chieveley in this case in the quiet of his room without expense to the parties; that he will not be referred to otherdecisions
on other facts; and that submissions will be measured in hours and not days. An appeal should be rare and the appellate court should be slow to interfere."
That dictum is, in my mind equally applicable to all the judges in what are now the Business and Property Courts of England and Wales, including, as in this case, the Technology and Construction Court."
THE HEARING
defendants,
about the quantity of material which had been
deployed
by both sides. His explanation relied partly upon the procedural complexity of the proceedings in Brazil and partly upon the need to respond to the growing number of submissions raised and documents relied upon by the claimants in what, to my mind, had long since
deteriorated
into a forensic arms race.
deployed
by the parties over the preceding period of seven months. I took the view that any attempt retrospectively, and at the eleventh hour, to restrict the
deployment
of such material would be likely to do more harm than good. The parties would be distracted from the task of preparing the case and there would almost inevitably have arisen time-consuming disputes as to what material should be abandoned and what retained. The genie was already out of the bottle. For these reasons, I indicated that I would proceed on a "we are where we are" basis. I permitted the parties to serve further evidence to
deal
with specifically
defined
recent
developments
in the Brazilian proceedings but to be strictly confined to no more than 20 pages each. I also accepted that the skeleton arguments would probably have to be longer than usual in order to cover the relevant ground. There was, however, a limit to the extent of the arguably over-generous indulgence I was prepared to afford the parties whilst at the same time remaining loyal to the need to comply with the overriding objective.
detailed
material more palatable to the Court. Hitherto, Mr Gibson QC, on behalf of the
defendants
had responded to the
deployment
of such notes with weary resignation rather than outright opposition. On this occasion, however, he objected specifically to the introduction of a new argument to the effect that Samarco might not be able to afford to meet the judgments in all the claims brought against it in Brazil. His cri
de
coeur was expressed in these terms:
"My Lord, I had hoped that would be it, but last night, and indeed this morning, we had a further repetition of what we have been enduring, which is another blizzard -- a harassment, I don't know what the collective name for hand-ups is, a harassment of hand-ups and we've received four more this morning. We are provided with these with no opportunity to look at them and this is a case in point."
"For the right to "full redress" to be meaningful, if must be a right that can be enforced against an entity capable of paying the relevant level of compensation in full. There can be no assurance that any judgments ultimately obtained against Samarco will necessarily be met…"
And at paragraph 10:
"In these circumstances, the claimants'decision
to sue these
defendants
is an obvious one. Where there are several
defendants
liable for a loss, claimants have every right to look to a
defendant
against whom an order may most easily be satisfied."
"MR JUSTICE TURNER: Where does this appear in your skeleton argument? I can see the evidence upon which the submission would be grounded, but I would like to know upon what notice thedefendants
were put that this was part of your armoury.
MR HOLLANDER: I'm not seeking -- what I'm seeking to say is that --
MR JUSTICE TURNER: Shall we go step by step? Is the point in your skeleton argument "yes" or "no"?
MR HOLLANDER: No, it's not."
defendants
and not the claimants. I did not regard this to be a trump card.
"MR HOLLANDER: They have themselves said that Samarco, in documents before the Brazilian court, may not be good for the money.
MR JUSTICE TURNER: All this may or may not be the case. I have got huge, huge, volumes of documentation and evidence in this court. I think the Court is entitled to know in advance what the issues are, not for there to be a treasure hunt at the last minute for documents in evidence to support a case that…has not previously been articulated in written argument and I don't think that's unreasonable.
MR HOLLANDER: I take your Lordship's point."
defendants
was expressly relied upon in respect of Samarco in the Master Particulars of Claim. However, on 19 March 2020, the claimants' solicitors had written to the
defendants'
solicitors indicating that the claimants would not be pursuing this basis of claim. They stated that the relevant paragraphs were formally withdrawn. The clear implication is that the claimants were not intending to allege that Samarco would be unable to meet its liabilities. The claimants advanced (and continue to advance) no alternative explanation as to why their pleaded case on this issue would otherwise have been abandoned.
defendants'
firm of solicitors with conduct of the case, that the
defendants
were asserting that the claimants had rights of full redress in Brazil and that there was no instance in which Samarco (and others) had failed to make such redress through lack of funds. In March 2020, the claimants served about 1,000 pages of witness statements and experts' reports in which there was no suggestion whatsoever that Samarco might not be able to meet its liabilities.
defendants'
skeleton argument that they were proceeding upon the assumption that the solvency of Samarco was simply not in issue. This assumption was entirely reasonable and, if the point were not conceded by the claimants, ought to have been challenged straightaway and not on the penultimate day of the hearing.
develop
the Samarco issue, then I would have been obliged to grant the
defendants
the opportunity to respond. Bearing in mind the superabundance of material which had already been
deployed
by both parties on all the other issues in the case, I was in no doubt that this new point, if permitted to flourish, would
derail
the timetable of the hearing. It is to be noted that,
despite
the fact that the hearing before me had been listed to take place over eight days, by order of Judge Eyre QC on 20 April 2020, it had proved to be only just possible within this timescale to accommodate the parties' submissions relating to the matters already in issue. Indeed, on the final day, it was necessary to start at 9.30am, to curtail the length of the short adjournment and for the Court to sit until 4.45pm. It was the last day of term. By reason of the necessary social distancing restrictions imposed by the Covid 19 risk assessment, the Civil Justice Centre in Manchester, not without serious potential disruption to other court users, had been obliged to sacrifice no fewer than four of its largest courtrooms to facilitate access to the hearing which was being transmitted to relay courts via video link.
"MR HOLLANDER: Let medeal
with Samarco. I think it really arose from your Lordship's questioning yesterday about Samarco and the point here is that Samarco themselves have relied on their lack of funding…"
"MR HOLLANDER: I think frankly it arose because your Lordship raised the point in questions."
"MR HOLLANDER: All I was saying, and I expressed myself badly, was that actually your Lordship asked some questions about Samarco and wedealt
with it in the light of that."
28. It is thus necessary to read carefully the 159 pages of transcript of day six of the hearing in order to ascertain which of my interventions had prompted Mr Hollander's attempt to introduce the Samarco issue on the following day. The relevant, and only relevant, passage is, I believe, to be found at pages 137-8:
"MR JUSTICE TURNER: Is there any remotest chance that if you were to be unsuccessful in this application anybody would want to sue BHP Plc in Brazil?
MR HOLLANDER: I should think it is extremely unlikely.
MR JUSTICE TURNER: I can see why we have to look at this, but it is probably as a matter of fact an academic exercise although I see where it fits into the legal issues…
MR HOLLANDER Effectively the whole point of suing in this jurisdiction is that essentially suing in Brazil has not been a success. And that's why I make [the] point about that you have a number ofdefendants
who are potentially jointly and severally liable or who are -- it doesn't matter -- who are all liable as contract breakers or tortfeasors on a particular attempt. You try to get relief against one
defendant
in Brazil or three
defendants
perhaps. You -- your attempts to do so get bogged down, so you then sue in a different jurisdiction, different
defendant,
who is also liable and that's what is being done. There's no embarrassment in doing that at all. It's a perfectly legitimate thing to do. For example, if -- suppose the -- you have concerns about the -- concerns about the financial stability of the
defendant
in Brazil. This is just an example. Then you then sue a different
defendant,
against whom you don't have concerns about their financial stability in a different jurisdiction, particularly -- or you find that the proceedings in the Brazilian jurisdiction are, as I put it, got bogged down and not going anywhere and providing you with the relief. There is no possible criticism, in my submission, of suing a different
defendant,
who is also liable, in a different jurisdiction. So that's what -- but -- so that's why it's been done." [Emphasis added]
29. It is to be noted that at no stage on that day had I suggested that the solvency of Samarco was an issue upon which I was inviting or encouraging the claimants to revisit their case.
"However, it is sufficient for my purposes to say that we are entitled todecide
who we want to sue for all sorts of individual subjective reasons."
And:
"This simply goes to the subjective position as to why we have sued these people, thesedefendants,
rather than necessarily Samarco."
decision
to bring a claim against these two
defendants
in England. Moreover, if the issue of Samarco's solvency had really been a genuine and significant cause for concern on the part of the claimants, then it was completely incomprehensible why it had not been raised much earlier as a matter of blindingly obvious and free-standing importance.
"Shall I move on?
"MR HOLLANDER: I have on board your Lordship's point and I understand what you are saying and I recognise the force of it."
deeply
flawed that no reasonable judge could have made the
decision
to which such an approach inevitably led.
decision
were entirely clear from the exchanges which I had had with counsel and which had been recorded in the transcript, copies of which were provided to all parties and to the Court at the end of each day.
PERMISSION TO APPEAL
defendants'
solicitors, however, and in my view rightly, considered this to be inappropriate and the claimants' solicitors relented. Thus it was that, some five days after the appellant's notice had been lodged and three weeks into my judgment writing time, I was informed of what had been going on.
deferred
until after I had handed down substantive judgment. It would appear that the claimants' intention was to allow me to hand down a judgment in accordance with my ruling on the Samarco issue and then to seek ex post facto, in the event that they were to lose, to undermine that judgment on the grounds that it had been vitiated by my ruling on that issue.
"Commentary on r.52.3 in successive editions of the White Book since the 2000 edition has suggested that, although that rule in terms gives parties a choice to apply for permission either to the lower court or to the appeal court, and expressly states that a refusal in the lower court does not act as a bar to an application to the appeal court, for several reasons a would-be appellant would generally be well-advised in the first instance to apply for permission to the lower court for five reasons. The reasons are:
(a) the judge below is fully seized of the matter and so the application will take minimal time. Indeed the judge may have alreadydecided
that the case raises questions fit for appeal;
(b) an application at this stage involves neither party in additional costs;
(c) no harm is done if the application fails. The applicant "enjoys two bites at the cherry";
(d) if the application succeeds and the applicant subsequentlydecides
to appeal, they avoid the expensive and time-consuming permission stage in the appeal court;
(e) no harm is done if the application succeeds, but the applicant subsequentlydecides
not to appeal."
"13. I can say with complete confidence that, in the vast majority of cases, practitioners should follow the guidance contained in the notes to the rule and apply to the trial judge at the point of judgment. Applications that come direct to this court without prior application to the trial judge usually result from a hand down without attendance, followed by the discovery that the trial judge is either then sitting in crime or has gone away for annual leave. Of course, there will always be cases in which, either the client is not available to give instructions or the client having initially instructed counsel not to apply, then changes his or her mind and requires an application to be made. So there can be no absolute rule, nor any sanction applied to those who neglect to apply to the trial judge. However, it seems to me that, as a matter of practice, when a judgment is handed down by a judge of the Family Division in this building, the aggrieved party should consider in advance of the hand down fixture whether or not an application for permission is to be made and if thedecision
is to apply, then the application should be made at the hand down. The judge thereby has an opportunity to give on the requisite form his or her reasons for rejecting the application, the statement of which may be of some value to this court if the permission application is subsequently renewed."
decision
in respect of which the application for permission to appeal is directed is, of course, that of 30 July 2020 and not any
decision
flowing from the judgment which has yet to be handed down. Accordingly, the obvious time for applying to me for permission to appeal was on that day or the day after. Alternatively, the claimants knew that I was writing the judgment in this case in the vacation and would, therefore, be likely to be available, as was indeed the case, to entertain a written application for permission to appeal.
derived
from any statement of reasons from me as recommended in T (A Child). Such an approach is particularly unhelpful in a case of such complexity as this in which I had had the considerable advantage of spending over a week pre-reading vast quantities of documentary material and had had the benefit of eight full days hearing oral argument.
"1.3 The parties are required to help the court to further the overriding objective."
detail.
decision.
Such an invitation should been issued immediately after I had made my ruling, on the following day or, at the very latest, promptly thereafter. As the Court of Appeal pointed out in English v Emery Reimbold & Strick Ltd [2002] 1 WLR 2409:
"25. Accordingly, we recommend the following course. If an application for permission to appeal on the ground of lack of reasons is made to the trial judge, the judge should consider whether his judgment isdefective
for lack of reasons, adjourning for that purpose should he find this necessary. If he concludes that it is, he should set out to remedy the
defect
by the provision of additional reasons refusing permission to appeal on the basis that he has adopted that course. If he concludes that he has given adequate reasons, he will no doubt refuse permission to appeal. If an application for permission to appeal on the ground of lack of reasons is made to the appellate court and it appears to the appellate court that the application is well founded, it should consider adjourning the application and remitting the case to the trial judge with an invitation to provide additional reasons for his
decision
or, where appropriate, his reasons for a specific finding or findings. Where the appellate court is in doubt as to whether the reasons are adequate, it may be appropriate to direct that the application be adjourned to an oral hearing, on notice to the respondent."
defective
on the grounds of lack of reasons but, in any event, had I been requested to give fuller reasons, I would have obliged. The failure to request further reasons is another illustration of the obvious potential disadvantages of failing to seek permission to appeal at first instance.
determination
of the application for permission and the handing down my substantive judgment should proceed.
detailed
written submissions. This time, the suggestion was that I should simply accept that I had been wrong on the Samarco issue, change my mind and save the Court of Appeal the job of putting me right.
decision
was wrong.
THE GROUNDS OF APPEAL
The Judge erred in principle in proceeding on the basis that the Claimants should prima facie be restricted to points set out in their skeleton argument, thereby effectively treating the skeleton argument as a pleading. The evidence had been completed prior to exchange of skeleton arguments and the Claimants were properly entitled to
develop
their case by taking additional points in oral argument based on that evidence and in response to the
Defendants'
oral submissions.
define
and confine the areas of controversy". Although this Practice Direction is applicable specifically to appellate proceedings, I do not doubt that the principle applies, at least in general terms, to first instance hearings.
"The court's general powers of management
3.1 (1) The list of powers in this rule is in addition to any powers given to the court by any other rule or practice direction or by any other enactment or any powers it may otherwise have.
(2) Except where these Rules provide otherwise, the court may –
… (k) exclude an issue from consideration;…"
defendants'
documentary evidence upon which the Samarco issue was based had already been served well before the skeleton arguments had been drafted. The suggestion in this Ground that the new issue was raised "in response to the
defendants'
oral submissions" at the hearing is, however, surprising. Mr Hollander's stated justification to me for seeking to introduce the new issue was that it had been my interventions on the preceding day which had prompted this initiative. The
defendants'
oral submissions had been concluded three days earlier and, if the Samarco issue had been raised in response to these, it is inexplicable why the point had not been flagged up more promptly. Equally significant is the fact that the claimants do not now seek to allege in the Grounds of Appeal that the reason the Samarco issue arose was, as Mr Hollander had repeatedly and exclusively put it in oral submissions, because of my interventions on the previous day.
delay
in articulating it can be excused as a response to the
defendants'
"full redress" argument is little more than a fig leaf. If there were any merit in the point, the claimants should have raised it long before this.
Defendants'
own evidence
4. The Judge proceeded on a false basis, because he did not review the evidence on which the Claimants sought to rely before making the ruling. The evidence primarily relied on was the
Defendants'
own evidence filed in support of the application (including the
Defendants'
own published accounts). It is apparent from the terms of his ruling that the Judge did not appreciate this. Had he done so, he could not properly have held that the Claimants should be precluded from relying on the evidence, or that if they were permitted to do so the
Defendants
would be entitled to adduce further evidence. Moreover, there was no factual basis for the Judge's finding that the
Defendants
had chosen not to adduce evidence in response because they had assumed that the point was not in issue.
defendants
is wholly untenable. The point was repeatedly made by Mr Hollander during the course of his submissions to which I, at least, was listening attentively.
develop
his oral arguments by preferring instead to run a persistent, noisy and undignified sideshow with those sitting on the other side of the court. At one stage, the background hubbub became so intrusive that I had to intervene. As the transcript reveals:
"MR JUSTICE TURNER: I think this might be better…for this matter to bedetermined
by counsel and myself, not as between rival tribes on either side of the court. So I would prefer that people remained quiet whilst I'm listening to Mr Hollander's representations. Thank you"
deployed
by both sides and that I was entitled to "know in advance what the issues are, not for there to be a treasure hunt at the last minute for documents in evidence to support a case that … has not previously been articulated in written argument."
Defendants
in the Brazilian litigation. The point which the Claimants were seeking to make is that the judge was not taken to the material referred to in the note handed up to him, and it was not pointed out to him that the material primarily relied on in that note was material served by the
Defendants
themselves in support of their application to strike out the proceedings. The material referred to by Mr Hollander was not the same as the material relied on in the note."
deployed
by the
defendants
in support of their applications as being of any real significance. The point was, and remains, that, particularly bearing in mind the vast numbers of documents involved regardless of their provenance, the Samarco issue could and should have been raised much earlier. I am, of course, unable to
determine
whether the egregious
delay
in seeking to raise the issue was attributable to ambush or oversight but, whatever the explanation, it left the
defendants
with no adequate opportunity to respond. In the final analysis, the fact that the claimants were seeking to rely on evidence
deployed
by the
defendants
fell far short of justifying the introduction of a new issue at the eleventh hour. If, contrary to my own view, the distinction was considered by the claimants to be so important then it ought to have been fully articulated by Mr Hollander at the time he was seeking to introduce it.
defendants
had chosen not to adduce evidence in response because they had assumed that Samarco's solvency was unchallenged. Not only did the claimants' point make no appearance in the claimant's gargantuan skeleton argument but the pleaded case relating to the Samarco issue had been abandoned expressly and in writing. Mr Gibson's submissions on the point during the course of the hearing make this plain:
"MR GIBSON: My Lord, just so my learned friend candeal
with it, it goes
deeper
than that, because the concession was made in correspondence saying they would be withdrawing that part of their claim. It was then expressly referred to in our own evidence that we would therefore proceed on that basis and of course relied on as a point in our skeleton… could I take you to M8. It is page 5. Paragraph 14 {B2/1/5}:
"On 19 March 2020, PGMBM wrote to my firm that the claimants will not be pursuing their claims against thedefendants
arising from the allegations in respect of Samarco's liability and inability to pay ... These paragraphs are formally withdrawn."
It was in evidence. There was no application or request to change that position. Our entire presentation of our case has proceeded on that basis as is clear from our skeleton."
defendants'
skeleton, served a week before the hearing, contended:
"No issue is taken (rightly) as regards Samarco's ability to pay…The pleaded allegation that Samarco was unable to pay has been expressly withdrawn."
defendants
had assumed that the point was not in issue. If the claimants had been taken by surprise by this proposition then their failure forthwith to correct it is indefensible.
5. The Judge did not consider whether there were understandable reasons why the evidence had not been referred to in the Claimants' skeleton argument. There were in fact such reasons, because of the way in which the
Defendants'
case was presented at the hearing. The
Defendants'
primary case as originally formulated was that the Claimants had an established right to full redress in Brazil against various parties. However, at the hearing, the
Defendants'
primary case was that, whether or not such right had been established, in practice the Claimants would be able to obtain full redress from Samarco in Brazil.
defendants
had significantly changed their case in their oral submissions then I would have expected that:
(i) the point would have been flagged up and pursued by Mr Hollander during or, at the very latest, at the conclusion of those submissions. It was not;
(ii) Mr Hollander would have made at least some reference to the alleged change of case in his oral submissions. He did not;
(iii) Mr Hollander would not have based his oral submissions entirely upon the suggestion that it was my intervention on the previous day which had catalysed the attempt to introduce the point.
defendants
who had consistently asserted their understanding that Samarco's ability to pay was not in dispute. I am driven to the conclusion that the claimants' "change of case" explanation is wholly untenable.
6. The Judge failed to consider the importance of the evidence to the fair
determination
of the case and the prejudice to the Claimants if they were not permitted to rely upon it. Given that the
Defendants'
submission at the hearing was that it was pointless and wasteful to sue the
Defendants
in England rather than suing Samarco in Brazil, evidence that Samarco might be unable to pay any judgment against it was obviously highly material to the Court's
decision.
Preventing the Claimants from relying on evidence to that effect which had been placed before the Court by the
Defendants
themselves was therefore potentially seriously prejudicial to the Claimants' case.
(i) The
defendants
had been presented with the issue with virtually no notice and, had I not excluded it, would have been entitled to be given adequate time within which to respond. I formed the view that, if I had granted such time, it would be very likely indeed that the hearing would be
derailed;
(ii) It is entirely through the claimants'
default
that the Samarco issue was not raised much, much earlier. If it were as significant as is now suggested then the failure to raise it earlier was all the more egregious;
(iii) Fairness requires the court to consider the position of both parties and of the Court itself. Failing to allow the
defendants
the opportunity to respond would be to prejudice them for a situation brought about entirely by the
default
of the claimants. Allowing the
defendants
to respond would have almost certainly caused significant further
delays,
expense and even heavier drawings on the scarce and valuable commodity of court time.
Defendants
7. The Judge did not consider the question whether the evidence sought to be relied on was in fact in dispute, or whether there was in fact any prejudice to the
Defendants
if the Claimants were permitted to rely on it. Given that the evidence was the
Defendants'
own evidence filed in support of the application, and was
derived
from the
Defendants'
own published accounts, there was no basis on which it sensibly could have been disputed by the
Defendants.
Moreover, even if the evidence had been referred to in the Claimants' skeleton argument, the
Defendants
would have had no right to adduce further evidence on the point.
defendants
would be unable confidently to meet the new point in the very limited time available to them; particularly bearing in mind the fact that they would inevitably be working overnight on their oral submissions which had been scheduled to be made over the next and final day of the hearing.
defendants
would be entitled to
demonstrate
that they did not present the whole picture and would be entitled to seek to introduce further evidence or, at the very least, to formulate further submissions to seek to redress the balance.
"8. The Judge failed to consider what the overall justice of the case required, in particular having regard to (a) the risk of serious prejudice to the Claimants if they were precluded from relying on the evidence in question and (b) the possibility of alleviating any prejudice to the
Defendants,
if such prejudice existed at all (for example by permitting them an opportunity to make further submissions or put in further evidence on the point after the conclusion of the hearing). Had he done so, he could not have reached the
decision
he did, which was plainly wrong."
dealt
with the argument concerning the strong risk of prejudice to the
defendants
and the likely expense,
delay
and encroachment upon the resources of the court in the event that the
defendants
were to have been afforded more time in which to respond to the point.
decision.
It is one to which I adhere and from which none of the grounds of appeal incline me to
depart.
decline
to accept the claimants' invitation to reconsider my original ruling. I regret that I have found it necessary to
descend
into unconventional and, I suspect, unpalatable
detail
on this issue in this long judgment. However, the claimants' failure either to seek permission to appeal from me and/or request fuller reasons would otherwise have put the Court of Appeal at a very significant disadvantage which it is, at least in part, the purpose of this judgment to offset.
THE WAY AHEAD
defaulted
to the assumption that it should not be considered at an appellate level until after I had handed down the substantive judgment on the
defendants'
applications. I was not satisfied that this was the most appropriate order of events and emailed the parties to express my concern.
defendants
advocate that the Court of Appeal should
determine
the application for permission to appeal (and, if permission is given, the appeal itself) before I hand down substantive judgment. The claimants adhere to their original strategy to have the Court of Appeal proceedings
delayed
to await my judgment.
defendants'
approach is the correct one.
"Appeal first: Judgment second
If permission to appeal were to be given and the Court of Appeal were thereafter to reach the view that mydecision
was wrong then one option would be for the matter to be remitted back to me for specific consideration of the evidence relating to the financial status of Samarco so that my assessment of the same could be incorporated into, and given due consideration in, my judgment but only assuming that it had not already been handed down. In the absence of any suggestion of bias or systemic mishandling of the hearing, and in the light of the extravagant additional costs and
delays
which would be involved, I would not expect that the case would be remitted thereafter to another judge.
If, on the other hand, the Court of Appeal were to refuse permission or find against the claimants on the appeal then there is no reason why I should not then promptly distribute my judgment in draft in the expectation of a hand down shortly thereafter.
However, handing down the judgment before the appeal process has exhausted could give rise to problems.
Judgment first: Appeal second
I cannot, in advance, hypothetically adjudicate in my judgment on whether (and, if so, in what respects) I would have reached different conclusions had I taken into account evidence said to undermine the financial position of Samarco. Having ruled that I would not entertain argument on the point during the course of the hearing, it would be wrong for me to speculate as to the impact such arguments would otherwise have had.
If, therefore, the Court of Appeal were to allow the appeal, this Court would then face the invidious prospect of grafting onto an already perfected judgment an ex post facto reshuffling of the factual findings upon which the flawed original had been based. Bearing in mind the complexity of the issues with which I would have todeal,
I would not find this to be an attractive proposition."
defer
consideration of the application for permission until after my substantive judgment has been handed down. I propose to
deal
with each of their arguments in turn.
decision
of the court on such an issue is not then to be put into storage only to be dusted off later in the event that judgment in the final hearing might also go against the losing party. The parties and the court are normally entitled to know upon what basis final judgment will be given and not be subject to the risk that the material upon which such judgment has been founded is retrospectively vitiated by an appellate court.
deal
with two separate but closely related appeals in the same matter. I disagree. If the present appeal process were to be resolved in favour of the claimants then this Court would, of course, dutifully proceed in accordance with the directions of the Court of Appeal. If the substantive judgment to follow were to be further challenged then the basis of such challenge would inevitably be distinct from the question of my original ruling on the consideration of the Samarco argument. Similarly, if the present appellate challenge were to be unsuccessful then any ground of appeal against my substantive judgment would have to exclude the Samarco issue because the claimants would already have lost on that point.
delay
which is likely to ensue from pursuing the present permission application first. I am not entirely satisfied that the
delay
would be any shorter if the present application for permission were disposed of first. There are a number of possible procedural permutations upon which it would be tedious and disproportionate to speculate further. The way forward is to seek to expedite the
determination
of the application. Such an approach would have my full support. If the permission application were to fail, which I consider to be very likely, then my substantive judgment can be handed down promptly thereafter.
CONCLUSION
decline to change my mind about my ruling on the Samarco issue and consider that the Court of Appeal should adjudicate on the matter before I hand down my substantive judgment. I have, accordingly, circulated a draft order for consideration by the parties. I invite the parties to make any ancillary applications in writing.