Factual and Procedural Background
The case concerns claims arising from the catastrophic collapse of a dam in south-eastern Brazil in November 2015, which released over 40 million cubic metres of iron ore tailings into the Doce River, causing extensive environmental damage, destruction of villages, and loss of life. Over 200,000 claimants, including individuals, corporations, and institutions, alleged loss resulting from this disaster.
Two defendants remain: an English company and its associated Australian company, both served within the jurisdiction. A subsidiary of the Australian company was involved in the Brazilian joint venture that owned and operated the dam alongside another partner.
The claimants' case, pleaded under Brazilian law, involves strict liability, fault-based liability, and liability as controlling shareholders. The claims were issued in the Business and Property Courts in Liverpool in November 2018.
The defendants applied to strike out or stay the claims on grounds including abuse of process due to "irredeemable unmanageability," jurisdictional issues under the Brussels I Regulation (Recast), and forum non conveniens. The judge struck out the claims as an abuse of process, alternatively stayed them on jurisdictional grounds or case management grounds.
The claimants sought permission to appeal ("PTA"), which was initially refused on paper by the appellate judge. They then applied under CPR Part 52.30 to re-open that refusal. The appellate judge recused himself, and the matter was directed for oral hearing before three Lords Justices, who indicated a preliminary view favoring granting PTA if the application succeeded.
Legal Issues Presented
- Whether the judge was correct to strike out the claims as an abuse of process on the basis of "irredeemable unmanageability".
- Whether the judge improperly conflated abuse of process principles with jurisdictional principles, creating the concept of "jurisdictional abuse".
- Whether the judge erred in striking out claims brought against defendants duly served within the jurisdiction, thereby erecting barriers to access to justice under article 4 of the Brussels Recast Regulation.
- Whether the judge misapplied the Henderson v Henderson principle by failing to distinguish claimants who had not made claims in Brazil.
- Whether the appellate judge adequately grappled with the claimants' grounds of appeal when refusing PTA.
Arguments of the Parties
Appellants' Arguments
- The judge had no legal basis to strike out proceedings solely on the grounds of "irredeemable unmanageability".
- The judge wrongly merged abuse of process principles with jurisdictional principles, inventing "jurisdictional abuse".
- The judge created impermissible barriers to access to justice by striking out claims properly served within the jurisdiction contrary to article 4 of Brussels Recast.
- The judge misapplied Henderson v Henderson by failing to distinguish claimants who had not brought claims in Brazil, including 58 institutional claimants.
- The appellate judge failed to properly address or "grapple with" these essential points when refusing permission to appeal, critically undermining the integrity of the PTA process.
Respondents' Arguments
- The claims were rightly struck out as an abuse of process due to the existence of parallel proceedings in Brazil and the unmanageability of the English proceedings.
- The judge applied established legal principles correctly and did not create any novel category of "jurisdictional abuse".
- The appellate judge’s refusal of PTA was justified as the appeal had no realistic prospect of success.
- The claimants' grounds of appeal were unfocused, diffuse, and did not identify any strong or clearly arguable points.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Taylor v. Lawrence [2002] EWCA Civ 2009 |
Principles governing reopening of appeals under CPR 52.30; critical undermining of integrity of prior proceedings required. |
Applied to assess whether the appellate judge’s refusal of PTA should be reopened due to failure to grapple with essential points. |
| Attorney General v. Barker [2000] 1 FLR 759 |
Definition of abuse of process as improper use of court process. |
Quoted by the judge to support finding that claims were an abuse of process. |
| Henderson v. Henderson (1843) 3 Hare 100 |
Doctrine preventing multiplicity of litigation and duplicative claims. |
Applied by the judge to justify striking out duplicative claims; appellate judge endorsed relevance. |
| Wyeth (AB v. John Wyeth & Brother (No. 4)) [1994] PIQR P109 |
Abuse of process in group litigation where claims are pointless and wasteful. |
Distinguished by claimants; judge referenced to support conclusion on futility of claims. |
| Spiliada Maritime Corpn v. Cansulex Ltd [1987] AC 460 |
Test for forum non conveniens and appropriate jurisdiction. |
Applied by the judge to conclude Brazil was the natural forum for claims against the Australian company. |
| Wasif v. Secretary of State for the Home Department [2016] EWCA Civ 82 |
Standards for giving reasons when refusing permission to appeal without oral hearing. |
Applied to assess adequacy of appellate judge’s reasons for refusing PTA. |
| R (Goring-on-Thames Parish Council) v. South Oxfordshire District Council [2018] EWCA Civ 860 |
Clarification of principles for reopening appeals under CPR 52.30 and giving reasons for refusal of PTA. |
Applied to evaluate appellate judge’s approach and reasons. |
| Barclays Bank plc v Guy (No.2) [2011] 1 WLR 681 |
Limits on reopening appeals; failure to advance or inept argument generally insufficient. |
Referenced in considering whether appellate judge failed to understand or address points. |
| Lawal v. Circle 33 Housing Trust [2014] EWCA Civ 1514 |
Summary of principles for reopening appeals under CPR 52.30; critical undermining of process required. |
Applied to assess whether the appellate judge’s refusal of PTA was properly given. |
| R (Wingfield) v. Canterbury City Council [2020] EWCA Civ |
Reaffirmation of strict approach to reopening appeals under CPR 52.30. |
Applied to emphasize high threshold and two-stage test for reopening PTA refusals. |
| Jameel v. Dow Jones & Co Inc [2005] QB 946 |
Principle that abuse of process protects court resources and prevents misuse of proceedings. |
Referenced by the judge to support stance on court policing its own process. |
| Rasheed v. Secretary of State for the Home Department [2014] EWCA Civ 1493 |
Proper drafting and purpose of grounds of appeal. |
Quoted in guidance on structuring grounds of appeal to aid court’s understanding. |
| Harveye v. Secretary of State for the Home Department [2018] EWCA Civ 2848 |
Clarification on content and purpose of grounds of appeal versus skeleton arguments. |
Referenced to emphasize importance of grounds of appeal as analytical tool. |
Court's Reasoning and Analysis
The court undertook a detailed examination of the judge’s reasoning and the appellate judge’s refusal of permission to appeal. The judge had struck out the claims primarily on the basis that the English proceedings were "irredeemably unmanageable" due to the existence of extensive parallel proceedings in Brazil, risks of irreconcilable judgments, and cross-contamination of issues.
The judge also considered jurisdictional grounds under article 34 of the Brussels Recast Regulation and forum non conveniens, concluding that Brazil was the appropriate forum.
The claimants challenged four main points: the legal basis for striking out on unmanageability grounds; the conflation of abuse of process with jurisdictional principles; barriers to access to justice under article 4; and the misapplication of Henderson v Henderson regarding claimants who had not sued in Brazil.
The appellate judge refused permission to appeal without an oral hearing, concluding the strike-out was justified and the appeal had no realistic prospect of success. However, upon application to reopen the refusal, a panel of three Lords Justices found that the appellate judge had failed to adequately "grapple with" the claimants’ essential points, particularly the unmanageability point, the article 4 point, and the Henderson point.
The court emphasized that the appellate judge’s reasons were conclusory on key issues, failing to address specific arguments and legal principles raised by the claimants. This failure critically undermined the integrity of the PTA process as required by CPR 52.30 and the authorities governing reopening of appeals.
The court noted that the claimants’ grounds of appeal were lengthy and diffuse, complicating the appellate judge’s task. Nevertheless, the failure to engage substantively with core arguments was a significant procedural flaw.
On the jurisdictional grounds related to article 34 and forum non conveniens, the appellate judge’s brief treatment was considered acceptable given the dispositive nature of the abuse of process grounds.
Applying established principles from leading authorities, the court held that reopening the refusal of PTA was justified due to the exceptional circumstances and the powerful probability that the outcome would have been different had the appellate judge properly addressed the claimants’ arguments.
Holding and Implications
The court GRANTED the claimants' application to reopen the appellate judge’s refusal of permission to appeal and granted permission to appeal on all grounds.
The decision means the claimants may now pursue an appeal against the order striking out their claims. The court imposed a condition relating to the payment of costs ordered by the original judge, with an opportunity for the claimants to seek relief from this condition upon written representations.
The court emphasized that this reopening is exceptional and does not indicate a general readiness to reopen refusals of permission to appeal. It highlighted the importance of well-structured grounds of appeal and adequate reasons from appellate judges when refusing permission.
No new legal precedent was established; the ruling focused on procedural fairness and the correct application of established principles governing permission to appeal and reopening of appeals under CPR 52.30.