Flavio De Carvalho Pinto Viegas and Others v The Estate of José Luis Cutrale (represented by Rosana Falcioni Cutrale)

Hearing dates: 3, 4 and 8 July 2024

Approved Judgment

This judgment was handed down remotely at 10.30am on 2 October 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

In these proceedings, the claimants allege that the defendants participated in a cartel which, in breach of Brazilian law, aimed at achieving a monopoly over the markets in Brazil for the acquisition of oranges and the production of frozen orange juice concentrate. According to the claimants, the cartel had come into existence by 1999 and lasted until at least 24 January 2006. The claimants have indicated that they reserve the right to allege that it continued beyond that date.

The claimants are described in the particulars of claim as “1,548 independent Brazilian orange farmers” who have suffered loss as a result of the anti-competitive practices in which the defendants are said to have engaged. In some cases, the claims are brought as heirs or representatives of the estates of such farmers.

When the claims were issued, the defendants were named as Mr José Luis Cutrale (“Mr Cutrale Snr”), his son Mr José Luis Cutrale Jnr (“Mr Cutrale Jnr”) and a company with which they were involved, Sucocítrico Cutrale Ltda (“Sucocítrico”). However, in a judgment dated 5 November 2021 ( [2021] EWHC 2956 (Comm)) Henshaw J concluded that there was no jurisdiction over Sucocítrico, leaving Mr Cutrale Snr and Mr Cutrale Jnr as the only defendants. In the following year, Mr Cutrale Snr died and his widow, Mrs Rosana Falcioni Cutrale, was appointed to represent his estate in the litigation.

Although they have been the subject of a single set of pleadings, there are two sets of proceedings. The first claim (“the Viegas Claim”), brought by Mr Viegas and others, was issued on 27 September 2019, the second (“the Sanches Claim”), brought by Mr Sanches and others, on 22 November 2019. In advance of either claim form being served, that in respect of the Viegas Claim (“the Viegas Claim Form”) was amended twice, on 22 November 2019 and 23 January 2020. The net effect of the amendments was to add 1,361 claimants to the Viegas Claim.

The proceedings were served on Mr Cutrale Snr and Sucocítrico on 27 January 2020 and on Mr Cutrale Jnr on 26 February 2020. On 5 June 2020, all three defendants filed an application challenging the jurisdiction of the Courts of England and Wales. As already indicated, that application was successful in the case of Sucocítrico, but it failed as regards Mr Cutrale Snr and Mr Cutrale Jnr.

Thereafter, Mr Cutrale Snr and Mr Cutrale Jnr applied for some of the claims which had purportedly been brought against them to be struck out. Mr Cutrale Snr's first application was issued on 19 November 2021. Mr Cutrale Jnr applied on 11 March 2022 after the Court of Appeal had on 25 February 2022 refused him permission to appeal against Henshaw J's decision. A further application was issued on 21 March 2022 on behalf of both Mr Cutrale Snr and Mr Cutrale Jnr.

On 18 November 2022, a further claim (“the Nicolau Claim”) was issued against the defendants on a protective basis. The claimants were said to include the individuals who had been added to the Viegas Claim or the heirs of such persons.

The strike out applications came before Dame Clare Moulder (“the Judge”), sitting as a Judge of the High Court, in June 2023. The Judge delivered a reserved judgment (“the Judgment”) on 24 July 2023 and dealt with consequential matters in a further, ex tempore judgment (“the Consequentials Judgment”) on 15 September 2023.

Both sides have appealed. It is convenient to address the various grounds of appeal in the following order:

i) The defendants' appeal: grounds 1 and 2 (disallowance of amendments);

ii) The claimants' appeal: ground 1 (amending to specify representatives);

iii) The claimants' appeal: grounds 2 and 3 (standing of heirs);

iv) The claimants' appeal: grounds 4 and 5 (giving time to obtain grants);

v) The defendants' appeal: ground 3 (carve-outs).

The defendants' grounds 1 and 2 concern whether the Judge should have disallowed amendments to the Viegas Claim Form on the basis that they prejudiced limitation defences. The claimants' appeal and the defendants' ground 3 all relate to claims made in respect of causes of action which persons who had died by the time the proceedings were issued are said to have had.

The defendants' appeal: grounds 1 and 2 (disallowance of amendments)

Introduction

Part 17 of the Civil Procedure Rules is concerned with amendments to statements to case. Where a statement of case has been served, it cannot be amended without either the written consent of all the other parties or the permission of the Court: see CPR 17.1(2) and (3). The position is, however, different if the statement of case has not yet been served. CPR 17.1(1) states:

“A party may amend their statement of case, including by removing, adding or substituting a party, at any time before it has been served on any other party.”

The amendments to the Viegas Claim Form were made in reliance on CPR 17.1(1) (quoted in paragraph 65 below). The defendants contend, however, that they should be disallowed pursuant to CPR 17.2. That reads:

“(1) If a party has amended their statement of case where permission of the court was not required, the court may disallow the amendment.

(2) A party may apply to the court for an order under paragraph (1) within 14 days of service of a copy of the amended statement of case on them.”

The White Book explains at 17.2.1 that an application under CPR 17.2“is appropriate if the amendment challenged is one which, if permission to amend it had been necessary, that permission would not have been granted”.

The defendants' case is that the amendments at issue should be disallowed on limitation grounds. As they note, there is no dispute that it is arguable that the claimants' claims were barred by limitation by the time the amendments were made. According to the defendants, that of itself makes it appropriate to disallow the amendments. In the alternative, the defendants argue for disallowance on the basis that “relation back” could operate to their prejudice were the amendments allowed to stand.

The Judge, however, declined to disallow the amendments. She considered that it would have been appropriate to do so only if a reasonably arguable limitation defence had been prejudiced by the operation of relation back and that that was not the case. The Judge concluded in paragraph 82 of the Judgment:

“In my view the authorities are clear that the Court is concerned with whether the Defendants have an arguable case on limitation and whether that case is prejudiced by the operation of the principle of relation back. The agreed position in this case was that the Defendants' case on limitation i.e. that it expired by 2009 was arguable. If the amendments are allowed, that case is not prejudiced by the operation of the principle of relation back. The Claimants' counter position is irrelevant to the question of whether the Defendants' case on limitation is prejudiced.”

Earlier in the Judgment, in paragraph 43, the Judge had explained:

“In the present case the pleaded case of the Defendants is that in relation to limitation, the limitation period expired in 2009 and thus on its case the operation of relation back will make no difference to its case. On its case the original claim is out of time and the amended case will be equally out of time regardless of the date it is (deemed to be) issued and thus there is no prejudice to the Defendants' limitation case by the new claim.”

In paragraph 86, the Judge said:

“In my view, in circumstances where the Defendants' pleaded case is that the limitation period expired in 2009, the Claimants have shown that the Defendants do not have a limitation defence which would be prejudiced by the operation of the principle of relation back.”

The Judge further took the view that the defendants' applications were made too late. The Judge considered that the defendants required relief from sanction to apply under CPR 17.2 outside the 14-day period for which CPR 17.2(2) provides and that such relief should not be granted. She concluded in paragraph 139 of the Judgment:

“The Defendants have in my view chosen not to bring the application within the time period allowed and waited for well over a year before telling the Claimants that they might challenge the amendments on the basis of limitation thereby potentially putting some Claimants outside the limitation period on the Claimants' case. The Defendants' substantive application to disallow the additional Claimants is not to protect its limitation defence but if successful would deprive the bulk of the Claimants of their claim. In my view that is not a just...