Mr Flavio De Carvalho Pinto Viegas and 1, 516 others v The Estate of Mr José Luis Cutrale (represented by Mrs Rosana Falcioni Cutrale)
| Jurisdiction | England & Wales |
| Judge | Dame Clare Moulder DBE |
| Judgment Date | 24 July 2023 |
| Neutral Citation | [2023] EWHC 1896 (Comm) |
| Court | King's Bench Division (Commercial Court) |
| Docket Number | Case Nos: CL-2019-000603 and CL-2019-000727 |
[2023] EWHC 1896 (Comm)
Dame Clare Moulder DBE
SITTING AS A JUDGE OF THE HIGH COURT
Case Nos: CL-2019-000603 and CL-2019-000727
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
KING'S BENCH DIVISION
COMMERCIAL COURT
Royal Courts of Justice, Rolls Building
Fetter Lane, London, EC4A 1NL
Alain Choo Choy KC, Russell Hopkins, Juliet Wells and Anirudh Mathur (instructed by Pogust Goodhead trading as PGMBM Law Limited) for the Claimants/Respondents
Brian Kennelly KC, Thomas Fletcher and Gayatri Sarathy (instructed by Linklaters LLP) for the Defendants/Applicants
Hearing dates: 26–29 June 2023
Approved Judgment
I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This judgment was handed down by the judge remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time for hand-down is deemed to be Monday 24 July 2023 at 10:30am.
Introduction
By applications dated 19 November 2021, 11 and 21 March 2022 under CPR rr.3.4(2) and/or 17.2, the Defendants apply to strike out, and/or disallow amendments purporting to add or substitute, certain claims brought by the Claimants (the “Strike Out Applications”).
Claim Form no. CL-2019-000603 (the “Viegas Claim”) and CL-2019-000727 (the “Sanches Claim”) relate to an alleged cartel between several Brazilian undertakings from 1999 to 2006. The First and Second Defendants, Mr Cutrale Snr and Mr Cutrale Jnr respectively were during this period directors and shareholders of Sucocítrico Cutrale Ltda, a company incorporated and domiciled in Brazil which produces orange juice and is one of the undertakings that is alleged to have participated in the cartel.
The Claimants are connected with orange farmers domiciled in Brazil.
Mr Cutrale Snr passed away on 17 August 2022. Mrs Rosana Falcioni Cutrale was appointed to represent his estate.
The Viegas claim was originally issued on 27 September 2019 on behalf of 170 claimants. It was then amended prior to service to add further claims on 22 November 2019 and 23 January 2020. As amended, the Viegas Claim Form includes claims by some 1,495 individuals, 21 companies and one foundation.
The Sanches Claim was issued on 22 November 2019 on behalf of 30 individuals and one company. The Sanches Claim has never been amended.
A further claim (CL-2022-000620) was issued protectively on 18 November 2022 (the “Nicolau Claim”). By a consent order those proceedings are stayed temporarily pending an order that finally disposes of the Strike Out Applications (as defined above).
Procedural history
The Viegas and Sanches Claim forms were served on the First Defendant in England on 27 January 2020 and on the Second Defendant in Switzerland on 26 February 2020.
The Defendants challenged jurisdiction. Henshaw J held on 5 November 2021 that the Court had jurisdiction over the First and Second Defendants but not Sucocítrico Cutrale Ltda (the “Jurisdiction Judgment”). The Second Defendant sought permission to appeal this finding by an application to the Court of Appeal made on 26 November 2021 (the “Jurisdiction Appeal”), which was refused on the papers by order of Males LJ dated 25 February 2022.
The First Defendant issued his First Strike Out Application on 19 November 2021. The Second Defendant issued his strike out application on 11 March 2022, after Males LJ refused him permission (on 25 February 2022) to appeal the Jurisdiction Judgment. The Second Defendant's application sought relief in materially similar terms to his father's (as it stood following amendments to the draft order communicated to the Claimants on 18 February 2022 and 11 March 2022, and filed on 11 March 2022). The applications are referred to as the “First Strike Out Application”.
On 21 March 2022, both Defendants filed the Second Strike Out Application, seeking relief on different and wider (but in some respects overlapping) grounds.
Expert evidence
On limitation
The parties had obtained evidence on the issue of limitation under Brazilian law from Mr. Drago instructed by the Claimants and Dr Coutinho instructed by the Defendants. However, as referred to below, by the time of the hearing the Defendants' case on limitation was agreed to be arguable and therefore it was not necessary to refer to this evidence or for the experts to give oral evidence.
On succession
On Brazilian law issues of inheritance and succession, Professor Leonardo Faria Schenk, instructed by the Claimants, produced a report dated 12 May 2023.
Mr Arnaldo Penteado Laudisio, instructed by the Defendants, produced a report dated 10 March 2023 and a second report dated 1 June 2023
The experts produced a Joint Expert Report dated 9 June 2023.
Grounds
Although the Claimants noted in their skeleton that the Defendants have not sought the Court's permission to amend the scope of the relief sought under CPR 3.1(2)(m) and that the Claimants would argue that the Defendants' approach is prejudicial and that the Court should not entertain their arguments or the relief sought to the extent that they go beyond the matters set out in their application notices and accompanying witness statements, no such objection was pursued at the hearing. I infer that the Claimants took the pragmatic view that they have been able to address the new issues both in the expert evidence and in submissions.
In the absence of any objection to the expanded scope of the applications before the Court, it is convenient to identify the issues to be determined by reference to the draft order submitted with the Defendants' skeleton as follows:
a. Limitation (paragraph 1 of the draft order).
b. Claims issued on behalf of persons who were deceased (paragraph 2 of the draft order).
c. Whether English grants of representation were required for claims brought by representatives of the estates:
i. when Brazilian inventory proceedings had not commenced or were open, by heirs in their own names
ii. when the litigation rights had not been transferred to the relevant heir and recorded in the Formal de Partilha under Brazilian law, by heirs in their own names
(paragraphs 3,4 and 5 of the draft order).
d. Claims which were brought without the informed consent of the Claimant or without the Claimant's solicitors having the authority to issue and pursue proceedings on their behalf (paragraph 6 of the draft order) and in particular (subparagraphs 6.3 and 6.4 of the draft order):
i. Claims where the authority was derived from an assignment of the right to conduct the claim to third parties (trade associations and the funder, Prisma).
ii. Claims by heirs where the authority to issue the claim was derived from a power of attorney and the heir was not authorised to enter into the power of attorney.
e. Amendments to the Viegas Claim in reliance on the grounds dismissed in Rawet v Daimler AG [2022] 1 WLR 5105 (paragraph 8 of the draft order). As referred to below these grounds were not argued before this Court but the Defendants wish to reserve their right to pursue the issues on appeal.
In addition the Defendants seek relief from sanctions (if required) (paragraph 14 of the draft order). This arises primarily in relation to the issue of limitation as this is the only ground pursued before this Court which is brought solely on the basis of CPR 17.2 and not in the alternative under CPR 3.4(2).
CPR 17 and 19
The relevant provisions of CPR 17 and CPR 19 are as follows:
17.1—Amendments to statements of case
17.1
(1) 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.
(2) If his statement of case has been served, a party may amend it only—
(a) with the written consent of all the other parties; or
(b) with the permission of the court.
(3) If a statement of case has been served, an application to amend it by removing, adding or substituting a party must be made in accordance with rule 19.4.
(4) A party who files a notice under Part 38 discontinuing all or part of a claim may amend their statement of case without the court's permission to give effect to the discontinuance.
(Part 22 requires amendments to a statement of case to be verified by a statement of truth unless the court orders otherwise.)
17.2—Power of court to disallow amendments made without permission
17.2(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.
…
17.4—Amendments to statements of case after the end of a relevant limitation period
17.4 (1) This rule applies where—
(a) a party applies to amend their statement of case in one of the ways mentioned in this rule; and
(b) a period of limitation has expired under—
(i) the Limitation Act 1980; or
(ii) the Foreign Limitation Periods Act 1984 or;
(iii) any other enactment which allows such an amendment, or under which such an amendment is allowed.
(2) The court may allow an amendment whose effect will be to add or substitute a new claim, but only if the new claim arises out of the same facts or substantially...
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