Court of Appeal (Civil Division) — Summary of Approved Judgment

Factual and Procedural Background

This opinion concerns an application by the Defendants for permission to appeal and for expedition against a first-instance liability judgment (the Stage 1 judgment) given by Judge O'Farrell and reported at [2025] EWHC 3001 (TCC). The central event is the collapse on 5 November 2015 of a tailings dam (the Dam) in The State, which released over 40 million cubic metres of iron-ore tailings, caused liquefaction, killed 19 people, destroyed a village and caused very extensive environmental damage extending down The River and reaching The Sea two weeks later. The Respondents are numerous claimants (over 600,000) including individuals, municipalities, utilities, faith-based institutions and businesses, all asserting damages for that collapse.

The dam was owned and operated by Company A (a Brazilian company) which was jointly owned by Company B and Company C. The Defendants are the United Kingdom and Australian parent companies of Company C and related entities (referred to collectively below as the Defendants). The Stage 1 liability trial ran from October 2024 to March 2025 (50 hearing days). The trial judge delivered an extensive judgment finding for the Respondents on many issues, including strict liability, fault-based liability and limitation, and ordered that some issues proceed to a subsequent trial on quantum (the Stage 2 trial scheduled for 2027).

Procedurally, the litigation has an extended history: the claims were struck out in 2020 on jurisdiction/forum non conveniens grounds and that strike-out was reversed on appeal ([2022] EWCA Civ 951). There have been other interlocutory and appellate decisions arising in the same litigation, including a Court of Appeal decision in 2026 concerning contempt/anti-suit injunctions ([2026] EWCA Civ 294). After the Stage 1 judgment, the Defendants applied for permission to appeal; the trial judge granted permission only on a discrete costs interest point. The present Court of Appeal judgment (reasons given by Judge Fraser, with Judge Lewison agreeing) determines the Defendants' application for permission to appeal on substantive grounds and the related application for expedition.

Legal Issues Presented

1. Whether the trial judge was wrong, or whether there was a serious procedural irregularity, in finding the Defendants strictly liable as "polluters" under Article 3(IV) of the Environmental Law (Ground 1).
2. Whether the trial judge was wrong, or whether there was a serious procedural irregularity, in finding the Defendants liable under Article 186 of the Civil Code (fault-based liability) and related provisions (Ground 2).
3. Whether the trial judge erred, or committed a serious procedural irregularity, in her conclusions on the commencement and length of limitation periods under Brazilian law, specifically Article 200 of the Civil Code (suspension), Article 27 of the Consumer Defence Code (five-year period), and the 1932 Decree (public entities) (Grounds 3–5).

Arguments of the Parties

Defendants' Arguments

• The trial judge applied the wrong legal test for strict liability (arguing only operators can be direct polluters and that indirect liability required a duty of safety); alternatively, the judge committed three critical flaws in applying the multifactorial test (control, engagement with evidence on use of shareholder power, and causation standard).
• The trial judge failed to engage with the Defendants' factual and expert case across many discrete points (summarised as up to 14 factual points), amounting to a serious procedural irregularity under CPR 52.21(3)(b).
• On fault-based liability (Article 186) the Defendants argued the absence of an unlawful act/omission, absence of breach of any relevant duty or standard of care, and absence of the required causal link; they also disputed that constitutional or corporate provisions supplied the requisite duties.
• On limitation the Defendants contended the judge wrongly held that limitation was suspended until 2024 and that a five-year period applied (or that the 1932 Decree applied to public entities), and additionally argued the judge failed to engage with determinative issues.
• The Defendants sought expedition on the basis that a successful appeal on liability would make much Stage 2 preparation redundant and, if only the permitted costs interest ground proceeded, expedition thereon would serve the parties' interests given the size of costs.

Respondents' Arguments

• The trial judge's findings were supported by extensive factual and expert evidence, including geotechnical and Brazilian-law expert evidence; findings on fact and foreign law are to be treated with the usual appellate deference.
• The Defendants' submissions amounted to "island-hopping" through isolated documents and issues rather than demonstrating the trial judge reached irrational or unsupported conclusions or that there was a procedural irregularity.
• The pleading objections raised by the Defendants were considered and rejected by the trial judge; the agreed Final List of Issues and the evidence heard meant pleader-based technical objections were not decisive.
• On limitation, the judge addressed the competing expert analyses and STJ authority; the conclusions on suspension, applicable period and application of the 1932 Decree were open to her on the evidence.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
FAGE UK Ltd v Chobani [2014] EWCA Civ 5	Principles governing appeals on fact and the high degree of deference to trial judges' factual findings.	Used to explain the appellate reluctance to interfere with findings of fact and evaluations of expert evidence; applied as setting a high bar to permission to appeal.
Biogen Inc v Medeva plc [1977] RPC 1	Authority cited as part of the jurisprudential context for appellate deference on fact.	Referenced among authorities supporting restraint on appeals on fact.
Piglowska v Piglowski [1999] 1 WLR 1360	Appellate approach to findings of fact; caution against appellate re-evaluation of primary facts.	Adopted to underline the presumption that the trial judge considered all evidence and to limit appellate interference.
Datec Electronics Holdings Ltd v United Parcels Service Ltd [2007] UKHL 23 [2007] 1 WLR 1325	Authority illustrating appellate restraint.	Included among leading authorities on appeals on fact to support the court's approach.
Re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33 [2013] 1 WLR 1911	Supreme Court authority on appellate scrutiny of factual findings.	Referenced to demonstrate longstanding principle of deference to trial judges.
McGraddie v McGraddie [2013] UKSC 58 [2013] 1 WLR 2477	Clear statement of the rule that appellate courts should only interfere in rare occasions where trial judge was plainly wrong.	Quoted and relied upon for the proposition that appellate interference requires the "plainest of considerations".
Thomson v Kvaerner Govan Ltd [2003] UKHL 45	Passage quoted to illustrate rarity of appellate intervention on factual matters.	Used to emphasise the high threshold for disturbing trial findings.
Customs and Excise Commissioners v A [2002] EWCA Civ 1039 [2003] Fam 55	Illustration of appellate principles about reasons and the sufficiency of judgment's explanation.	Referenced to support that judges need not address every argument in exhaustive detail.
Bekoe v Broomes [2005] UKPC 39	Authority cited in the context of appellate deference.	Included among authorities exemplifying restraint in appeals on fact.
Argos Ltd v Office of Fair Trading [2006] EWCA Civ 1318	Authority on the scope of reasons required from a trial judge.	Quoted to show trial judges need not deal with every argument exhaustively.
Thomson v Christie Manson and Woods Ltd [2005] EWCA Civ 555	Warning against appellate "cherry-picking" of expert points within interlocking findings.	Applied to caution against appellate disagreement with composite trial judgments based on selected points.
Volpi v Volpi [2022] EWCA Civ 464	Set out principles governing appeals on pure facts and expert evaluations (six well‑settled propositions).	Relied on extensively to summarise the approach to appeals on fact and expert evidence and to reject the Defendants' approach of assuming omission from the judgment meant non-consideration.
Henderson v Foxworth Investments Ltd [2014] UKSC 41	Part of the body of authority on appellate restraint.	Referenced among cases establishing the high hurdle for appeals on fact.
Elliston v Glencore Services (UK) Ltd [2016] EWCA Civ 407	Authority concerning appellate handling of factual and expert evaluations.	Cited as further support for caution in appeals involving expert evidence.
JSC BTA Bank v Ablyazov [2018] EWCA Civ 1176 [2019] BCC 96	Included among appellate authorities on fact and evidence.	Referenced in the list of authorities supporting appellate restraint.
Staechelin v ACLBDD Holdings Ltd [2019] EWCA Civ 817 [2019] 3 All ER 429	Relevant to appellate approach to expert evidence.	Included among supporting authorities on appellate deference.
Perry v Raleys Solicitors [2019] UKSC 5	Authority on appellate review of factual findings.	Referenced as part of the jurisprudence underscoring restraint.
Byers v Saudi National Bank [2022] EWCA Civ 43 [2022] 4 WLR 22	Authority on appeals involving expert evidence evaluation.	Used to stress caution in overturning trial evaluations of expert evidence.
Griffiths v TUI (UK) Ltd [2021] EWCA Civ 1442 [2022] 1 WLR 973	Illustrates that a trial judge is not bound to accept uncontroverted expert evidence.	Cited to support that the trial judge may prefer witness evidence over expert opinion.
Kingley Developments Ltd v Brudenell [2016] EWCA Civ 980	Example where trial judge may prefer witness evidence to expert opinion.	Referenced in discussion of weighing expert and witness evidence.
Wheeldon Brothers Waste Ltd v Millenium Insurance Co Ltd [2018] EWCA Civ 2403	Summarised principles for permission to appeal in the TCC context.	Applied to explain additional reluctance to grant permission in specialist TCC cases and the high hurdle for appeals on fact/expert evaluation.
Serafin v Malkiewicz [2020] UKSC 23	On orders following unfair trial and the need for a complete retrial where trial was unfair.	Quoted to explain that an appellate court generally orders a complete retrial if a trial is unfair.
Perry v Lopag [2023] UKPC 16	Approach of English courts to foreign law, especially when expert foreign‑law evidence is central.	Applied to explain the disadvantage of appellate court when foreign-law issues (Brazilian law) are treated as facts and trial judge has had expert assistance and seen witnesses.
Banca Intesa Sanpaolo and another v Comune di Venezia [2023] EWCA Civ 1482	Further authority on approach to foreign-law issues.	Referenced alongside Perry v Lopag to explain limits on appellate interference in foreign-law determinations.
Vicuña (STJ decision)	Brazilian STJ authority concerning causation in environmental liability (repetitive appeal procedure).	Considered by the trial judge in assessing the causal link required under Brazilian environmental law; the Court of Appeal noted the judge's detailed treatment of Vicuña and related STJ decisions.
Brazuca STJ Special Appeal No. 1.615.971 (2016)	Brazilian STJ decision on causal link and adequate causality under Article 403 of the Civil Code.	Reviewed by the trial judge and relied upon in her analysis of causation; cited in the Court of Appeal's account of the judge's detailed reasoning.
Gold STJ Special Appeal No. 1.816.808 (2019)	Brazilian STJ authority relevant to causation in environmental liability.	Considered by the trial judge in her causation analysis; the Court of Appeal noted the judge's consideration of this case among others.

Court's Reasoning and Analysis

Judge Fraser summarised the application and applied well-established principles governing appeals on fact and evaluation of expert evidence: appellate courts must be cautious and only interfere where a trial judge's conclusions are plainly wrong or irrational, or where there is a compelling basis to conclude a serious procedural irregularity rendered the trial unjust. The court emphasised (drawing on authorities such as FAGE, McGraddie and Volpi) that:

• Findings of fact and evaluations of expert evidence are primarily for the trial judge who has seen and heard witnesses; an appellate court ordinarily assumes the trial judge took all evidence into account even if not every document or argument is expressly cited.
• The Defendants' primary tactic—arguing the judge "failed to engage" by focusing on omitted textual references or isolated documents—amounted to impermissible "island-hopping" and amounted in substance to re‑run of trial submissions rather than demonstration of irrationality or procedural unfairness.
• Issues of foreign law (Brazilian law) are treated as questions of fact in this jurisdiction; the trial judge had the benefit of competing expert evidence on Brazilian law and was better placed than the appellate court to evaluate that evidence and linguistic/legal nuance.
• Where the Defendants accepted that success on certain critiques would require a retrial, the court noted the practical and legal difficulties of substituting appellate evaluation for the trial judge and rejected suggestions that a retrial could be conducted effectively on transcripts alone.

Applying those principles to each ground:

• Ground 1 (strict liability): the trial judge applied the multifactorial test and her findings that the Defendants were direct and/or indirect polluters were supported by evidence. The alleged "concession" by the Respondents' expert was not established on a fair reading of the evidence. The three alleged "critical flaws" (control/shareholder power, failure to engage with evidence, and causation standard) were either challenges to findings of fact or were addressed by the judge in detailed analysis of Brazilian law and STJ precedent; none amounted to a plainly wrong conclusion or a serious procedural irregularity.
• Ground 2 (fault-based liability): the judge addressed the competing experts, distinguished and preferred aspects of different experts' evidence where appropriate, considered causation and corporate-law arguments and rejected the Defendants' contentions; the audit and risk‑management pleading objections were considered and dismissed as pleaded or not causing prejudice, and the judge's factual conclusions were properly open to her.
• Grounds 3–5 (limitation): the judge analysed the Brazilian law authorities and expert evidence and reached conclusions on suspension, the applicable limitation period and the application of the 1932 Decree to public entities. The Court of Appeal found no basis to treat those findings as unjust or plainly wrong and rejected the contention that the brevity of some parts of the reasoning showed failure to engage.

On expedition, because the trial judge had already granted permission on a single costs interest point, the Court accepted that expedition of that discrete ground would assist parties given the substantial costs at stake and the imminence of Stage 2; accordingly expedition was ordered for the single permitted ground of appeal.

Holding and Implications

HOLDING: The Court refused permission to appeal on each substantive ground raised by the Defendants (Ground 1 — strict liability; Ground 2 — fault-based liability; and Grounds 3–5 — limitation). The Court ordered expedition of the single ground of appeal already permitted by the trial judge (the costs interest point).

Implications:

• Direct effect: the trial judge's Stage 1 liability findings for the Respondents remain in place; the Defendants have only a single permitted appeal ground to proceed (a discrete costs interest issue), and that appeal was ordered to be expedited.
• Procedural principle: the judgment reinforces appellate deference to trial judges on findings of fact and expert evaluation (especially where foreign law is treated as fact and the trial judge has seen the witnesses), and cautions against attempting to found appellate review on selective examination of documents or omission from the written judgment.
• No new precedent: the Court applied established principles (as cited) rather than creating novel legal tests; the decision declines to disturb a detailed trial judge's fact‑based findings and therefore does not set new substantive law on strict liability, fault or limitation beyond its application of existing authority.