Município De Mariana (and the Claimants identified in the Schedules to the Claim Forms) v BHP Group Plc (formerly BHP Billiton Plc)
| Jurisdiction | England & Wales |
| Neutral Citation | [2021] EWCA Civ 1156 |
| Year | 2021 |
| Court | Court of Appeal (Civil Division) |
2021 June 22; July 27
Court of Appeal (Civil Division) - Practice - Permission to appeal - Proper approach to drafting grounds of appeal
The drafting of the grounds of appeal is of great importance to the proper determination of applications for permission to appeal. The Court of Appeal (Civil Division) is far too often presented with grounds which are over-lengthy and ill-focused, and where the distinct roles of the grounds and the skeleton argument are not respected. Grounds of appeal are intended to be short, succinct documents which identify as briefly as possible the respects in which it is said that the court below erred. In addition: (i) The grounds of appeal are an essential analytical tool for the court, to enable it to identify the issues which it is being asked to decide: they are not a vehicle for advocacy, which is the role of the skeleton argument. (ii) The starting point in every case must be for the appellant to think through carefully what specific errors the court below is alleged to have made. Once these errors have been identified, they need to be clearly and concisely articulated. In the unlikely event that the grounds are numerous, they must be presented in a structure which makes clear how they interrelate. (iii) Each ground of appeal must be separately numbered, and the particular passages in which the judge appealed is said to have gone wrong must be specifically identified. (iv) The purpose of the grounds of appeal is to identify the points on which permission to appeal is sought, not to argue those points. Supporting submissions belong in the skeleton argument. (v) It follows that grounds of appeal should be short; in many cases, a few sentences will suffice. In a complex case, grounds of appeal may be longer, but clarity and concision should never be compromised (post, paras 113–114).
The following cases are referred to in the judgment of the court:
AB v John Wyeth & Brother (No 4)[
Attorney General v Barker[
Harverye v Secretary of State for the Home Department
Henderson v Henderson(
Jameel (Yousef) v Dow Jones & Co Inc
R (Goring-on-Thames Parish Council) v South Oxfordshire District Council (Practice Note)
R (Wasif) v Secretary of State for the Home Department (Practice Note)
R (Wingfield) v Canterbury City Council (Practice Note)
Rasheed v Secretary of State for the Home Department
Spiliada Maritime Corpn v Cansulex Ltd[
Taylor v Lawrence
The following additional case was cited in argument:
Merricks v Masytercard Inc
The following additional cases, although not cited, were referred to in the skeleton arguments:
American Express Co v HM Treasury (No 2)
AK Investment CJSC v Kyrgyz Mobil Tel Ltd
Broxton v McClelland[
Depp v News Group Newspapers Ltd
EuroEco Fuels (Poland) Ltd v Szezecin and Swinoujscie Seaports Authority
Dexter Ltd v Vlieland-Boddy
H v Belgium (Application No 8950/80) (
Helle v Finland (Application No 20772/92) (
HMG Investment Holdings Ltd v National Westminster Bank plc
Jalla v Shell International Trading and Shipping Co Ltd
Kongress Agentur Hagen GmbH v Zeehaghe BV
Lungowe v Vedanta Resouces plc
MAD Atelier International BV v Manes
Magnin v France (Application No 26219/08) (unreported) 10 May 2012,
Michael Wilson & Partners Ltd v Sinclair
Moreira Ferreira v Portugal (Application No 19867/12) (
Okpabi (HRH Emere Godwin Bebe) v Royal Dutch Shell plc
Orams v Apostolides
Owusu v Jackson
PJSC Commercial Bank Privatbank v Kolomoisky
R (UNISON) v Lord Chancellor (Nos 1 and 2)
Ramos Nunes de Carvalho e Sá v Portugal (Applications Nos 55391/13, 57728/13 and 74041/13) (unreported) 6 November 2018,
Research in Motion UK Ltd v Visto Corpn
Saliba v Malta (Application No 24221/13) (unreported) 29 November 2016,
Sarrio SA v Kuwait Investment Authority[
Singh v Secretary of State for the Home Department
Sullivan v Bristol Film Studios
Suominen v Finland (Application No 37801/97) (unreported) 1 July 2003,
Tatry (Owners of cargo lately laden on board the ship) v Owners of the ship Matiej Rataj (The Tatry)
Van de Hurk v The Netherlands (Application No 16034/80) (
Wagner & JMWL v Luxembourg (Application No 75240/01) (unreported) 28 June 2007,
Zavarco plc, In re
APPLICATION to reopen application for permission to appeal
By proceedings issued on 2 and 5 November 2018 in the Technology and Construction Court of the Business and Property Courts in Liverpool the claimants, Municipio de Mariana and 57 other claimants, brought claims under Brazilian law against now two defendants, BHP Group plc, an English company, and BHP Group Ltd, an Australian company, for losses suffered as a result of the catastrophic consequences of the collapse of the Fundao dam in south-eastern Brazil in November 2015. The bases of the relief sought were strict liability as indirect polluters under articles in the Brazilian Environmental Code and Civil Code, fault-based liability under the Civil Code and liability as controlling shareholders of a Brazilian entity under the Corporate Law. On 7 August 2019 the defendants applied to strike out and/or to stay the claims. On 9 November 2020 Turner J [2020] EWHC 2930 (TCC) struck out the claims as an abuse of process. On 29 January 2021 Turner J [2021] EWHC 146 (TCC); [2021] Costs LR 97 refused permission to appeal. The Court of Appeal (Coulson LJ) refused on the papers to allow the claimants permission to appeal on the basis of their appellant’s notice and grounds of appeal filed on 16 February 2021.
By an application dated 20 April 2021 the claimants applied pursuant to CPR r 52.30 to reopen the application for permission to appeal. On 4 May 2021 the Court of Appeal (Underhill LJ) directed that the application to reopen be determined orally before three Lords Justices. The essence of the application was that Coulson LJ had failed to grapple with the contentions that: (1) there was no legal basis for Turner J to strike out proceedings as an abuse of process on the grounds of irredeemable unmanageablity; (2) Turner J had wrongly elided principles applicable to abuse of process with those applicable to the determination of the appropriate jurisdiction in which to bring claims; (3) there was no basis for Turner J to have struck out claims brought as of right against defendants properly served within the jurisdiction; and (4) Turner J had misapplied established principles and thereby prevented numerous claimants, which had made no claims in Brazil, from pursuing their legal rights in England.
The facts are stated in the judgment of the court, post, paras 2–3, 11–18.
Graham Dunning QC, Hugh Mercer QC, Marc Willers QC, Nicholas Harrison, Jonathan McDonagh and Russell Hopkins (instructed by
Charles Gibson QC, Daniel Toledano QC, Shaheed Fatima QC, Nicholas Sloboda and Max Schlote (instructed by
The court took time for consideration.
27 July 2021. SIR GEOFFREY VOS MR handed down the following judgment of the court.
Introduction1 Turner J (the “judge”) struck out this claim as an abuse of the process of the English court [2020] EWHC 2930 (TCC). There were over 200,000 individual, corporate and institutional claimants. Coulson LJ (the “appellate judge”) refused the claimants permission to appeal (“PTA”) on paper. The claimants then applied to the appellate judge to reopen that refusal to grant PTA under CPR Pt 52.30 (the “application”), according to the principles enunciated in Taylor v Lawrence[
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