Vale S.A. v BHP Group (UK) Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Coulson,Lady Justice Elisabeth Laing |
| Judgment Date | 24 November 2023 |
| Neutral Citation | [2023] EWCA Civ 1388 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: CA-2023-001763 |
and
[2023] EWCA Civ 1388
Lord Justice Coulson
Lady Justice Elisabeth Laing
Case No: CA-2023-001763
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
BUSINESS & PROPERTY COURTS OF ENGLAND AND WALES
TECHNOLOGY AND CONSTRUCTION COURT
Mrs Justice O'Farrell
Royal Courts of Justice
Strand, London, WC2A 2LL
Simon Salzedo KC, Richard Eschwege KC, Michael Bolding and Crawford Jamieson (instructed by White & Case LLP) for the Appellant
Shaheed Fatima KC, Nicholas Sloboda and Veena Srirangam (instructed by Slaughter and May Solicitors) for the Respondents
Hearing Date: 15 November 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on 24 November 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Introduction
On 5 November 2015, the Fundão Dam in southeast Brazil collapsed, killing 19 people, destroying villages, and causing widespread destruction and damage. One estimated figure for the remediation costs and compensation has been put at £25 billion. The dam was owned and operated by Samarco Mineração S.A. (“Samarco”), a joint venture company owned by the appellant (“Vale”) and BHP Brasil Ltda (“BHP Brazil”). The second respondent in these proceedings is the ultimate parent company of BHP Brasil. I shall refer to the respondents collectively as “BHP”.
Arising out of this disaster, there are different sets of civil proceedings in Brazil, both individual claims and class actions, which have been brought against Samarco, Vale and BHP Brasil. There have been very few, perhaps a dozen, claims in Brazil against BHP. On 2 and 5 November 2018, around 200,000 claimants issued proceedings against BHP in this jurisdiction and on 3 May 2019, a further claim form was issued against both BHP defendants. On 24 February 2023, a new claim form was issued against BHP, increasing the total number of claimants to approximately 732,000. The claims are all advanced under Brazilian law. BHP originally obtained an order that the claims should be struck out an abuse of process and this jurisdiction was not the appropriate forum for those claims, but that order was overturned by the Court of Appeal. Subsequently BHP have sought to join Vale into these proceedings as a Part 20 defendant. Vale challenged the jurisdiction of the English Court on the basis that there was no serious issue to be tried, and that this jurisdiction was not the appropriate forum for the Part 20 claim.
By a judgment dated 7 August 2023 ( [2023] EWHC 2630 (TCC)) O'Farrell J (“the judge”) refused those applications. In September, Vale sought permission to appeal (“PTA”) against her decision, although they had not first sought permission from the judge. I directed that they do that first. The judge refused PTA on 10 October 2023 and also refused Vale's application for a stay of the Part 20 claim. The application for PTA then came back to me in late October, albeit in a very different form to the September application. I called in the application for PTA to ensure the necessary efficiency and speed, given the judge's other directions and the trial date fixed for the Autumn of 2024. The hearing of the PTA application took place on 15 November 2023.
The Legal Framework
The focus of the PTA application is the appropriate forum for the Part 20 claim. The leading authorities are Spiliada Maritime Corp v Cansulex [1987] AC 460 (“ Spiliada”), AK Investment CJSC v Kyrgyz Mobil Tel Limited [2011] UKPC 7, [2012] 1 WLR 1804 (“ Altimo”), and Vedanta Resources Plc v Lungowe UKSC 20, [2020] AC 1045 (“ Lungowe”). All are referred to and analysed in the judge's judgment.
The application for PTA does not suggest, save for one possible exception made orally, that the judge failed to identify the correct principles from these cases. The complaint is that she did not apply them correctly to the facts: Ground 2A, which is at the heart of the PTA application, is headed “Failure correctly to apply the Spiliada principles”. That is a criticism of the judge's evaluation exercise, and so is not a promising starting point for any application for PTA. The general position has been recently restated by Lewison LJ in Volpi v Volpi [2022] EWCA Civ 464; [2022] 4 WLR 48 as follows:
“2. The appeal is therefore an appeal on a pure question of fact. The approach of an appeal court to that kind of appeal is a well-trodden path. It is unnecessary to refer in detail to the many cases that have discussed it; but the following principles are well-settled:
i) An appeal court should not interfere with the trial judge's conclusions on primary facts unless it is satisfied that he was plainly wrong.
ii) The adverb “plainly” does not refer to the degree of confidence felt by the appeal court that it would not have reached the same conclusion as the trial judge. It does not matter, with whatever degree of certainty, that the appeal court considers that it would have reached a different conclusion. What matters is whether the decision under appeal is one that no reasonable judge could have reached.
iii) An appeal court is bound, unless there is compelling reason to the contrary, to assume that the trial judge has taken the whole of the evidence into his consideration. The mere fact that a judge does not mention a specific piece of evidence does not mean that he overlooked it.
iv) The validity of the findings of fact made by a trial judge is not aptly tested by considering whether the judgment presents a balanced account of the evidence. The trial judge must of course consider all the material evidence (although it need not all be discussed in his judgment). The weight which he gives to it is however pre-eminently a matter for him.
v) An appeal court can therefore set aside a judgment on the basis that the judge failed to give the evidence a balanced consideration only if the judge's conclusion was rationally insupportable.
vi) Reasons for judgment will always be capable of having been better expressed. An appeal court should not subject a judgment to narrow textual analysis. Nor should it be picked over or construed as though it was a piece of legislation or a contract.
3. If authority for all these propositions is needed, it may be found in Piglowska v Piglowski [1999] 1 WLR 1360; McGraddie v McGraddie [2013] UKSC 58, [2013] 1 WLR 2477; Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5, [2014] FSR 29; Henderson v Foxworth Investments Ltd [2014] UKSC 41, [2014] 1 WLR 2600; Elliston v Glencore Services (UK) Ltd [2016] EWCA Civ 407; JSC BTA Bank v Ablyazov [2018] EWCA Civ 1176, [2019] BCC 96; Staechelin v ACLBDD Holdings Ltd [2019] EWCA Civ 817, [2019] 3 All ER 429 and Perry v Raleys Solicitors [2019] UKSC 5, [2020] AC 352.”
These propositions have been recently restated in an appeal concerned with the application of the Spiliada principles. In Samsung Electronics Co Ltd & Ors v LG Display Co Ltd [2022] EWCA Civ 423, Males LJ said:
“4. Often the question whether this test is satisfied will not have a single right answer. Views may reasonably differ as to the weight to be attributed to the different connecting factors relied on. The fact that this court might (or even would) have reached a different conclusion from the judge below is not in itself a reason to allow an appeal. Rather, this court may only interfere if the judge has made “a significant error of principle, or a significant error in the considerations taken or not taken into account” ( VTB Capital v Nutritek at [69]: similar formulations to much the same effect can also be found in other cases).
5. Further, it is important to say that the function of this court is to review the decision of the court below. The question is whether the judge has made a significant error having regard to the evidence adduced and the submissions advanced in the lower court. Just as the trial of an action is not a dress rehearsal for an appeal (see the well-known metaphor of Lord Justice Lewison in Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5 at [114]), neither is an application to set aside an order for service out of the jurisdiction. In general an appellant will not be permitted to rely on material which the judge was not invited to consider or to advance an entirely new basis for saying that the judge's evaluation on the issue of appropriate forum was wrong. A judge can hardly be criticised for not taking something into account if he was never asked to do so. Although no doubt this principle will be applied with some flexibility, bearing in mind that the ultimate Spiliada question is concerned with “the interests of all the parties and … the ends of justice”, good reason will be required for taking a different approach.”
Whatever the precise formulation of these propositions, they necessarily amount to a high bar. The civil justice system requires first instance judges regularly to undertake the sort of multi-faceted evaluation which the judge undertook here, and this court will only grant permission to appeal if there is a real prospect of demonstrating that the judge was “plainly wrong, in the sense of being outside the generous ambit where reasonable decision makers may disagree”: see Global Torch Ltd v Apex Global Management Ltd (No.2) [2014] UKSC 64, [2014] 1 WLR 4495 at 4500. For the reasons set out below, I am firmly of the view that Vale has no prospect of persuading the full court that they have cleared – or even got close to clearing – that high bar.
Ground 1: Serious Issue to be Tried
Ground 1 was originally very detailed, but the vast majority of the points originally taken in the Notice of Appeal have been deleted. The only surviving point is the complaint...
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