The Court of Appeal has given guidance on how to draft grounds of appeal in an opinion aimed at lawyers responsible for "over-lengthy and ill-focused" grounds (Municipio de Mariana v BHP Group PLC).(1)
In 2018 a group claim was issued by 200,000 claimants against two companies associated with one of the partners in the joint venture that owned and operated the Fundão dam, following its collapse in 2015. The claimants comprised those affected, including:
- municipalities; and
- indigenous peoples.
It was thought to be the largest group claim ever brought in England.
Prior to the issuance of the English claims, a separate group claim in the Brazilian courts had led to the creation of the Renova foundation, which was intended to provide compensation for individuals. Meanwhile, another, larger, group claim in Brazil, had been stayed since January 2017.
The defendants applied for the claims in England to be struck out or stayed. The application was heard by Mr Justice Turner in July 2020, who found that the claims should be struck out as they were so "irredeemably unmanageable" as to be an abuse of process; in addition, they would be futile in light of the parallel group claims in Brazil. The judge went on to say that if the claims had not been struck out, they would have been stayed under article 34 of the EU Brussels Recast Regulation (1215/2012/EU) and on forum non conveniens grounds.
Permission to appeal the judge's decision to strike out the claims was refused on paper by Lord Justice Coulson. The claimants applied to re-open that refusal to grant permission in order to appeal under Civil Procedure Rule (CPR) 52.30. The qualification to meet under CPR 52.30 is strict; the court will not re-open a decision unless:
- it is necessary to avoid real injustice;
- the circumstances are exceptional; and
- there is no alternative remedy.
Accordingly, the provision has rarely been used successfully.
The application was heard by Master of the Rolls Sir Geoffrey Vos, Lord Justice Underhill and Lady Justice Carr at an oral hearing in the Court of Appeal.
The Court of Appeal found that Coulson had failed to properly grapple with the four main points raised by the claimants' application for permission to appeal:
- The judge had had no legal basis to strike out the claims as an abuse of process on the ground of "irredeemable unmanageability". He had not explored whether a finding of unmanageability could justify a claim's strike out in any instance or only in circumstances where, as the claimants had argued, it had not been shown that full redress had been secured in Brazil.
- The judge had elided the principles applicable to abuse of process and to jurisdiction to invent a concept of "jurisdictional abuse", whereby the risks associated with having parallel proceedings in Brazil were recognised as making the English proceedings an abuse of process. The Court of Appeal expressed concern about the brevity of Coulson's treatment of this point but they did not think that the CPR 52.30 challenge could succeed on this ground alone.
- The judge had had no basis to strike out claims brought against defendants duly served within the jurisdiction; he had ignored article 4 of Brussels I Regulation which provides that, subject to the other provisions of the regulation, a person domiciled in a member state (England was a member state at the time) shall be sued in that member state. The Court of Appeal was more troubled by Coulson's treatment of this point, opining that:
it is not an answer to the argument that a claimant, who is not suing elsewhere, has the right to sue a defendant who can properly be served within the jurisdiction, to say that the proceedings are unmanageable or complex.
- The judge had misapplied the principles in Henderson v Henderson, preventing numerous claimants who had not made claims in Brazil from bringing claims in England. This was a subset of the discussion above concerning article 4 of Brussels I Recast that Coulson had failed to grapple with; unmanageability or complexity was not an answer to the claimants who had brought no other claims.
In light of the above, the Court of Appeal decided to re-open Coulson's refusal under CPR 52.30 on the basis that the points that he had failed to address were fundamental to the permission decision and, had he grappled with them, there was a strong possibility that he would have granted permission. The panel went on to grant permission to appeal the judge's strike out ruling.
This was a highly unusual case in which the Court of Appeal re-opened an appellate judge's decision to refuse permission to appeal under CPR 52.30. However, the circumstances were "truly exceptional" and must be seen in that light. This is unlikely to herald a more liberal attitude towards the use of this provision.
Instead, the most important practical implications of this case arise from the guidance that the Court of Appeal gave to practitioners regarding drafting the grounds of appeal. The structure of the grounds of appeal (including the accompanying particulars that elaborate on those grounds) and the skeleton argument may have contributed to the failure of the appellate judge to understand the main points raised. Indeed, the Court of Appeal noted that far too often it is presented with grounds that are "over-lengthy and ill-focused", where the distinct roles of the grounds and skeleton argument are not observed. Therefore, appellants may wish to:
- keep advocacy in the skeleton and out of the grounds. The grounds are an analytical tool to enable the court to identify the issues that it is being asked to decide;
- clearly and concisely articulate the specific errors that the lower court is alleged to have made in the grounds; and
- separately number each ground, making clear how they interrelate, and specifically identify the passages in which the judge being appealed is believed to have gone wrong.
For further information on this topic please contact Chris Ross or Rosy Gibson at RPC by telephone (+44 20 3060 6000) or email ([email protected] or [email protected]). The RPC website can be accessed at www.rpc.co.uk.