MUNICIPIO DE MARIANA AND OTHERS V BHP GROUP PLC AND ANOTHER [2021] EWCA CIV 1156

A large number of claimants who had suffered significant damage following the Fundao Dam collapse in Brazil have successfully applied for the reopening of a refusal for an appeal under CPR 52.30 against an order that their claim be struck out. Their appeal against the striking out order may now proceed.

FACTUAL BACKGROUND

This case concerned a claim for compensation following the collapse of the Fundao Dam in Brazil in November 2015. Claims exceeding a total value of £23 billion were brought in Brazil and over 200,000 claimants brought a claim in England against English defendants BHP Group plc and BHP Group Ltd. 

The claim was initially struck out by the High Court on the grounds that it was "irredeemably unmanageable" due to the large number of claimants and the closely related proceedings in Brazil. Permission to appeal this decision was initially refused in March 2021. The claimants applied to reopen that decision, submitting that the appellate judge’s reasons failed to grapple with essential aspects of the appeal and, on careful analysis of the authorities and the appellate judge’s reasoning, the usual appellate process had been critically undermined.

KEY LEGAL POINTS

In determining whether the court will give permission to reopen refusal of permission to appeal, CPR 52.30 provides that:

The Court of Appeal or the High Court will not reopen a final determination of any appeal unless

• it is necessary to do so in order to avoid real injustice.
• the circumstances are exceptional and make it appropriate to re-open the appeal; and
• there is no alternative effective remedy.

Taking into account the above grounds and considering the importance to many of the claimants of obtaining compensation for the loss suffered the court decided that in these exceptional circumstances the grounds to reopen the refusal had been met. The Court of Appeal (Sir Geoffrey Vos, Master of the Rolls, Underhill LJ and Carr LJ) reopened the refusal to grant permission, and went on to grant permission to appeal.

The Court of Appeal considered that the appellate judge, Coulson LJ, had inadequately considered key points, which went to the heart of the claimants' case. This not only caused a significant injustice to them by preventing their access to pursue proceedings in the English courts, but also undermined the integrity of the permission to appeal process. 

In reaching this decision the Court of Appeal considered the following points:

• The case had been labelled by the High Court as "irredeemably unmanageable". Given this, the claimants were permitted to expect that their specific reasons for challenging the unmanageability of the case would be dealt with and specifically addressed.
• The claimants had properly served claim forms against the English defendants in their country of residence and thus the claim should not be automatically struck out as an abuse of process. It is not an answer to a claimant's point of appeal to state that the complexity of the case should prevent them from pursuing English proceedings and effectively act as a barrier to them achieving justice. 
• The appellate judge failed to address the fact that a large quantity of claimants had not brought proceedings in Brazil, including 58 institutions who could not do so for practical reasons. Instead the judge had applied authority which concerned striking out 'duplicate' claims in different jurisdictions as an argument against the right to bring a claim in England.

The court held that, had these points been considered when determining permission to appeal, permission would have been granted and as such reopening the refusal was the only true effective remedy.

COMMENTARY

This decision shows that it is possible to meet the requirements of CPR 52.30, despite commentary to the effect that the grounds are "almost impossible to meet". While any final answers regarding the key issues in the case will wait until the Court of Appeal decides the substantive appeal, particularly with regard to "irredeemable unmanageability", this decision does call into question the approach of the High Court to the management of complex disaster claims adopted earlier in this case.

The decision highlights the importance of setting out grounds of appeal in a clear, concise and logically structured manner to enable the court to identify and consider them with ease. Failure to do so may make it difficult to establish that the relevant appeal criteria have been met; the court will be more reluctant to reconsider grounds of appeal which are unclear, unhelpful and do not specifically address where the claimant believes the court previously went wrong.