STRIKING OUT A MULTI-PARTY CASE AS AN ABUSE OF PROCESS: WHEN CASE MANAGEMENT IS “AKIN TO TRYING TO BUILD A HOUSE OF CARDS IN A WIND TUNNEL”

November 9, 2020 · by · in Abuse of Process, Striking out

Returning to the substantive issue in the judgment of Turner J in Município De Mariana & Ors v BHP Group Plc & Anor [2020] EWHC 2930 (TCC). The judge struck out the claims of 202,600 claimants on the grounds that the action was an abuse of process. Here we look at the reasons.

 

NB This decision was overturned on appeal, see  Municipio De Mariana & Ors v BHP Group (UK) Ltd & Anor [2022] EWCA Civ 951

“The task facing the managing judge in England would, I predict, be akin to trying to build a house of cards in a wind tunnel.”

THE JUDGMENT ON THIS ISSUE

The judge considered the defendants’ argument that the issue of proceedings in the English and Welsh courts amounted to an abuse of process.  That argument was accepted.  Bringing a multi-party action of this type, on this scale, when there were already proceedings taking place in Brazil, amounted to an abuse and the action was struck out on those (and other) grounds.

    1. I propose to deal with each ground in turn.
ABUSE OF PROCESS
The legal starting point
    1. The classic statement of the law with respect to striking out a claim as an abuse of the process of the court is to be found in the speech of Lord Diplock in Hunter v Chief Constable of the West Midlands Police [1982] AC 529 at p.536:

“My Lords, this is a case about abuse of the process of the High Court. It concerns the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people. The circumstances in which abuse of process can arise are very varied; those which give rise to the instant appeal must surely be unique. It would, in my view, be most unwise if this House were to use this occasion to say anything that might be taken as limiting to fixed categories the kinds of circumstances in which the court has a duty (I disavow the word discretion) to exercise this salutary power.”

    1. A working definition of abuse of process was formulated by Lord Bingham, in Her Majesty’s Attorney General v Barker [2000] 1 FLR 759. At paragraph 19, he defined an abuse of the process as:

“…a use of the court process for a purpose or in a way which is significantly different from the ordinary and proper use of the court process”.

    1. In Johnson v Gore Wood & Co [2002] 2 AC 1, Lord Bingham held at p22C-E:

“The rule of law depends upon the existence and availability of courts and tribunals to which citizens may resort for the determination of differences between them which they cannot otherwise resolve. Litigants are not without scrupulous examination of all the circumstances to be denied the right to bring a genuine subject of litigation before the court… This does not however mean that the court must hear in full and rule on the merits of any claim or defence which a party to litigation may choose to put forward.”

Particular caution to be exercised before striking out “first time” litigation
    1. One recurrent theme, which has been articulated in a number of the decided cases, is the reluctance of the court to deprive a claimant, on procedural grounds, of a platform upon which to prosecute a claim of adequate substantive merit where she has not ventilated such a claim in earlier proceedings. For example, in Johnson, Lord Millett held, at page 59D, that refusing to allow a citizen to litigate for the first time required particular justification because it was, on the face of it, a denial of the citizen’s right of access to the courts.
    2. In Summers v Fairclough Homes Limited [2012] 1 WLR 2004 Lord Clarke said:

“46. The right to a fair and public hearing in the determination of civil rights is enshrined in Article 6 of the European Convention on Human Rights (“ECHR”). The right includes a right of access to a court: Golder v United Kingdom (1975) 1 EHRR 524. The court must act compatibly with Article 6: Human Rights Act 1998 section 6(1). The court is of course itself a public authority: section 6(3). The right of access is not absolute: Golder at para 38. In Ashingdane v United Kingdom (1985) 7 EHRR 528 the European Court of Human Rights accepted at para 57 that the right might be subject to limitations. Contracting States enjoy a margin of appreciation. However, the essence of the right of access must not be impaired, any limitation must pursue a legitimate aim and the means employed to achieve the aim must be proportionate.

47. In the instant case the claimant obtained judgment on liability for damages to be assessed. We accept that that judgment is a possession within the meaning of Article 1 Protocol 1 of the ECHR and that the effect of striking out his claim for damages would be to deprive him of that possession, which would only be permissible if “in the public interest and subject to the conditions provided for by law …” The State has a wide margin of appreciation in deciding what is in the public interest, but is subject to the principle of proportionality: Pressos Compania Naviera SA v Belgium (1995) 21 EHRR 301 at paras 31-39.

48. It is in the public interest that there should be a power to strike out a statement of case for abuse of process, both under the inherent jurisdiction of the court and under the CPR, but the Court accepts the submission that in deciding whether or not to exercise the power the court must examine the circumstances of the case scrupulously in order to ensure that to strike out the claim is a proportionate means of achieving the aim of controlling the process of the court and deciding cases justly.”

    1. I bear all of these observations fully in mind when approaching the arguments relating to abuse in this case.
Henderson v Henderson
    1. The courts have shown less reticence in finding that there has been an abuse of process in circumstances in which a claimant has already taken (or forgone) the opportunity to bring her claim in other proceedings. An early and familiar example of a case in which such an abuse was found to have arisen was Henderson v Henderson (1843) 3 Hare 100 the modern significance of which was summarised with characteristic clarity by Lord Bingham in Johnson v Gore Wood & Co [2002] 2 A.C. at p 31 A-F:

“…Henderson v Henderson abuse of process, as now understood, although separate and distinct from cause of action estoppel and issue estoppel, has much in common with them. The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole. The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all. I would not accept that it is necessary, before abuse may be found, to identify any additional element such as a collateral attack on a previous decision or some dishonesty, but where those elements are present the later proceedings will be much more obviously abusive, and there will rarely be a finding of abuse unless the later proceeding involves what the court regards as unjust harassment of a party. It is, however, wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not…While the result may often be the same, it is in my view preferable to ask whether in all the circumstances a party’s conduct is an abuse than to ask whether the conduct is an abuse and then, if it is, to ask whether the abuse is excused or justified by special circumstances. Properly applied, and whatever the legitimacy of its descent, the rule has in my view a valuable part to play in protecting the interests of justice.”

    1. Seen in this light, the “rule” in Henderson v Henderson, as interpreted and applied in later cases, provides the court with a flexible guide to the sort of circumstances in which, for example, attempts to run the same case twice may properly be categorised as an abuse of court. It is not, as May LJ pointed out in Manson v Vooght (No.1) [1999] BPIR 376, to be “picked over semantically as if it were a tax statute”.
    2. A helpful generic summary of the principles to be applied is to be found in Dexter Limited v Vlieland-Boddy [2003] EWCA Civ 14 in which Clarke L J said:

“49. The principles to be derived from the authorities, of which by far the most important is Johnson v Gore Wood & Co [2002] 2 AC 1, can be summarised as follows:

i) Where A has brought an action against B, a later action against B or C may be struck out where the second action is an abuse of process.

ii) A later action against B is much more likely to be held to be an abuse of process than a later action against C.

iii) The burden of establishing abuse of process is on B or C or as the case may be.

iv) It is wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive.

v) The question in every case is whether, applying a broad merits based approach, A’s conduct is in all the circumstances an abuse of process.

vi) The court will rarely find that the later action is an abuse of process unless the later action involves unjust harassment or oppression of B or C.

50. Proposition ii) above seems to me to be of importance because it is one thing to say that A should bring all his claims against B in one action, whereas it is quite another thing to say that he should bring all his claims against B and C (let alone against B, C, D, E, F and G) in one action. There may be many entirely legitimate reasons for a claimant deciding to bring an action against B first and, only later (and if necessary) against others.

51. Those reasons include, for example, the cost of proceeding against more than one defendant, especially where B is apparently solvent and the case against B seems stronger than against others. More defendants mean more lawyers, more time and more expense. This is especially so in large commercial disputes. It by no means follows that either the public interest in efficiency and economy in litigation or the interests of the parties, including in particular the interests of C, D and E, is or are best served by one action against them all.

52. It seems to me that the courts should be astute to ensure that it is only in a case where C can establish oppression or an abuse of process that a later action against C should be struck out. I could not help wondering whether the defendants in this case would have given their lawyers the same instructions on the question whether they should have been sued in the first action if they had been asked before that action began as they have given now that a later action has been begun.

53. It is clear from the speeches of both Lord Bingham and Lord Millett that all depends upon the circumstances of the particular case and that the court should adopt a broad merits based approach, but it is likely that the most important question in any case will be whether C, D, E or any other new defendant in a later action can persuade the court that the action against him is oppressive. It seems to me to be likely to be a rare case in which he will succeed in doing so.”

    1. I see no reason in principle why Henderson considerations should not be relevant in circumstances in which a claimant seeks to run two sufficiently related actions in two different jurisdictions whether sequentially or in parallel. Of course, the issue as to whether such circumstances amount to an abuse will inevitably turn on the particular facts of the case.
Group actions and the impact on the court
    1. The various factual backgrounds to the authorities dealing with the scope and content of the inherent jurisdiction of the court in respect of the abuse of its process are, predictably, many and varied and there lies a danger in attempting to infer generic guidance from those cases in which the conclusions of the court are necessarily very fact sensitive. More specifically, the flexibility of the application of the inherent jurisdiction is such that its deployment in the context of group actions, whilst preserving the essence of the purpose for which the power to strike out for abuse is to be deployed, must inevitably take particular account of the exigencies of multi-party proceedings.
    2. For example, claims involving very considerable numbers of parties and issues inevitably place a burden on the court which may be very much greater than that which would be assumed in the context of a unitary action. Thus considerations of the allocation of court resources and the procedural practicability of accommodating the ambitions of the parties are liable to come more strongly into play.
    3. In AB v John Wyeth & Brother (No.4) [1994] P.I.Q.R. P109 thousands of plaintiffs (as they then were) claimed damages for personal injuries against the manufacturers and distributors of benzodiazepine drugs.[2] In a relatively small number of cases, those who had prescribed the drugs had also been joined in the proceedings as alternative defendants. The prescribers applied to strike out the claims against them as an abuse of the process of the court.
    4. The application succeeded at first instance and the Judge’s decision was upheld by the Court of Appeal. Stuart-Smith LJ observed at p. 114:

“Nor do we accept Mr. Scrivener’s analysis that the plaintiff must be guilty of unreasonable or blameworthy conduct before his action is struck out. In none of the cases is this the test. Quite plainly, unreasonable or blameworthy conduct in the course of litigation is not by itself sufficient to constitute an action as an abuse of process. There is nothing unreasonable in a plaintiff wishing to sue the police for assault (Hunter’s case) or to sue a solicitor for negligently advising a plea of guilty (Somasundaram v. Julius Melchior & Co. [1988] 1 W.L.R. 1394) or in seeking to recover damages for personal injuries which should have been, but were not, claimed in earlier proceedings (Talbot v. Berkshire County Council [1993] 3 W.L.R. 708). The principle in those cases is that it is contrary to public policy that the same issues should be relitigated, thereby wasting the time of the courts, running the risk of inconsistent verdicts and because it is vexatious to a defendant to have to face the same or similar issues twice, even where he may obtain an order for costs if the relevant litigation is unsuccessful (see: Ashmore’s case at p. 348H–349C).”

And, in particular:

“It is the effect on the courts themselves and the defendant that is important.”

    1. Furthermore, group litigation may also give rise to greater complexity in the nature of the challenges facing the claimants as Stuart-Smith LJ later went on to note at p.116:

“There was a good deal of evidence in the case of the general practitioner prescribers which pointed to difficulties faced by the plaintiffs in their actions. For example, in over 90% of the cases there is a Limitation Act defence, which the plaintiffs will have to overcome by obtaining a direction under section 33 of the Limitation Act 1980 or showing that their date of knowledge was within three years of action brought. There are very considerable problems on causation; these involve distinguishing between the effects of the drug and the underlying condition for which it was prescribed, the problems caused by previous addiction to benzodiazepine drugs other than those prescribed by the defendants, and distinguishing between symptoms due to the drugs or, in some cases, other drugs or excess alcohol, and the fact that many plaintiffs may suffer at least some withdrawal symptoms in any event. There is the difficult question of balancing the benefit of the drug against the undesirable consequences of taking it. We accept Mr. Scrivener’s submission that the judge did not take these matters into account in reaching his decision. He did not need to do so because there was ample other material upon which he could act. But, in our judgment, he would have been entitled to take them into consideration had he wished to. This would not involve considering the merits of each individual case; that would have been quite inappropriate. But any judge experienced in this type of litigation, and especially Ian Kennedy J. with his knowledge of these cases, would be able to appreciate that these considerations may present real problems in many, if not all, of the cases, quite apart from the modest quantum of the claims if successful.”

    1. In the instant case, the claimants make two general categories of complaint about the option of suing in Brazil. In broad summary, they say that getting full and timely redress in Brazil against any potential defendant or through Renova is little short of impossible. Secondly, they contend that there are very significant, if not insurmountable, procedural hurdles in the way of bringing claims against these two defendants in Brazil.
    2. The second objection would, in my view, carry far more force if the claimants had any compelling reason to seek to sue these two defendants in Brazil rather than, or in addition to, the present Brazilian defendants. In this regard, the claimants are in a similar position to the plaintiffs in AB who, by and large, had no understandably personal or objectively sustainable reason to sue the practitioners rather than, or in addition to, the manufacturers or distributors of the drugs. Usually, as I readily accept, a claimant can choose to sue whom she wants to but the claimants in this case appear to have wrongly purported to elevate this proposition into an absolute right. Where, as in AB, the choice of defendant brings no benefit to a claimant but the pursuance of a claim against such a defendant would result in the oppression of that defendant and/or would take a disproportionate toll on the court’s resources the court is entitled to intervene. In this case, the claimants have simply no interest in, or intention of, suing these two defendants in Brazil and I regard the conflicting evidence of the respective experts as to how this could (or could not) be theoretically procedurally achieved to have given rise to a largely sterile debate. This is a civil claim for damages in the Queen’s Bench Division of the High Court and not a public inquiry. Put simply, even if I were to proceed hypothetically on the basis they could not practicably sue these two particular defendants in Brazil, this would not change my conclusion on the issue of abuse of the process of this Court.
    3. The challenges which are alleged to face the claimants in getting redress from any source in Brazil (as opposed to just these two defendants) give rise to a different issue and one to which I will turn in due course.
    4. AB was decided before the introduction of the CPR but I find no basis upon which it could be argued that the present procedural regime would be expected to give rise to a narrower approach to the way in which courts are expected to deal with abuse of process applications in the context of multi-party litigation. On the contrary, and in particular, the need to take into account the resources of the court has been accorded specific weight in the overriding objective. In the context of this application, I do not apologise for setting out CPR Part 1.1 in full:

“The overriding objective

1.1 (1) These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly and at proportionate cost.

(2) Dealing with a case justly and at proportionate cost includes, so far as is practicable –

(a) ensuring that the parties are on an equal footing;

(b) saving expense;

(c) dealing with the case in ways which are proportionate –

(i) to the amount of money involved;

(ii) to the importance of the case;

(iii) to the complexity of the issues; and

(iv) to the financial position of each party;

(d) ensuring that it is dealt with expeditiously and fairly;

(e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases; and

(f) enforcing compliance with rules, practice directions and orders.”

    1. Under Part 1.2, the court must seek to give effect to the overriding objective when exercising any power given to it by the Rules.
    2. The power to strike out a statement of case is set out in CPR 3.4 the relevant parts of which provide:

“3.4(2) The court may strike out a statement of case if it appears to the court-

(b) that the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings…”

    1. I will, of course, have the substance of these rules in the forefront of my mind when adjudicating on the issue of abuse.
Proof and discretion
    1. The question arose during the course of oral submissions as to whether the decision of this court on the issue of abuse should involve either (i) an adjudication in respect of which there is only one right answer or (ii) one which involves the exercise of a discretion.
    2. In Aldi Stores Ltd v WSP Group Plc [2008] 1 WLR 748, Thomas LJ (as he then was) said:

“16. In considering the approach to be taken by this court to the decision of the judge, it was rightly accepted by Aspinwall that the decision to be made is not the exercise of a discretion; WSP were wrong in contending otherwise. It was a decision involving the assessment of a large number of factors to which there can, in such a case, only be one correct answer to whether there is or is not an abuse of process. None the less an appellate court will be reluctant to interfere with the decision of the judge where the decision rests upon balancing such a number of factors…”

    1. On the issue of proof, in Alpha Rocks Solicitors v Alade [2015] 1 W.L.R. 4535, Vos J (as he then was) observed:

“24…litigants should not be deprived of their claims unless the abuse relied upon has been clearly established. The court cannot be affronted if the case has not been satisfactorily proved.”

    1. There will, however, arise cases in which, even though an abuse has been proved, the court retains a discretion in choosing the appropriate response thereto.
    2. In Cable v Liverpool Victoria Insurance Co Ltd [2020] EWCA Civ 1015 Coulson LJ held:

“63. In the recent case of Asturion Foundation v Alibrahim [2020] EWCA Civ 32, [2020] 1 WLR 1627 , this court was considering a unilateral decision by the claimant not to pursue its claim for a period of time whilst maintaining an intention to do so at a later date. The court found that this may well constitute an abuse of process, but did not necessarily do so (see paragraph 61 of the judgment of Arnold LJ). More importantly for present purposes, the court set out the correct approach to an application to strike out for an abuse of process. It said that it was a two-stage test. First the court has to determine whether the claimant’s conduct was an abuse of process. Secondly, if it was, the court has to exercise its discretion as to whether or not to strike out the claim (see paragraph 64). It is at that second stage that the usual balancing exercise, and in particular considerations of proportionality, becomes relevant.

64. Furthermore, it seems to me that applying this two-stage test in circumstances like this not only provides clarity and simplicity, but it also avoids the sort of confusion that was identified by Turner J in Liddle v Atha. In that case the judge noted at paragraph 20 of his judgment that, in the lower court, the parties had agreed that, if there was an abuse of process, the application to strike out would automatically succeed. The judge was not satisfied with that, saying that he remained to be persuaded that the finding of abuse automatically gave rise to the striking out of the claim. As Asturion has subsequently demonstrated, Turner J was right to be doubtful: they are different questions and the finding of abuse of process does not lead inexorably to the striking out of the claim.”

    1. In those cases in which the court has appeared to treat the question of its adjudication upon an application to strike out for abuse of process as admitting to only one answer, one may readily infer that it has taken this approach because the nature of the abuse is such that, once found, there can be no real question but that only a strike out is appropriate. For example, in cases in which the court has decided that the very pursuance of the proceedings under consideration amounts to an irredeemable abuse it is likely to be that no response short of striking out can be justified. However, in cases in which a less draconian response may be appropriate, the court has room thereafter within which to exercise a discretion.
    2. I would add, for the sake of completeness, that my decision on the issue of striking out in this case would have been the same regardless as to what, if any, part of the decision had rested upon matters in respect of which there is only one right answer and which had involved the exercise of a discretion. I have, however, in my analysis later in this judgment drawn the line where I believe it to lie.
General points
    1. From the above, I derive the following non-exhaustive propositions of particular relevance to this case:
(i) The hallmark of an abuse of process is a use of the court process for a purpose or in a way which is significantly different from the ordinary and proper use of the court process;
(ii) Although plainly a relevant factor, bad faith on the part of the party against whom the point is taken is neither a necessary nor sufficient condition for the finding of an abuse of process;
(iii) Litigants should not be denied the right to bring a genuine subject of litigation before the court save upon a scrupulous examination of all the circumstances which leads the court to the conclusion that the claim should, nevertheless, be struck out;
(iv) Cases in which a claimant has already taken (or forgone) the opportunity to bring her claim in other proceedings may, depending very much upon the facts, properly be categorised as giving rise to an abuse of court whether as a standalone consideration or when taken into account with other material factors;
(v) The court is entitled (and indeed duty bound) to take into consideration the likely impact upon the business of the courts themselves in the event that the claims were permitted to go ahead;
(vi) The court must take a two stage approach. Firstly, it must address the question of whether or not an abuse has been clearly proved. If it has not, then, subject to its residual, free-standing case management powers, that is an end of the matter. If it has, then it must thereafter exercise its discretion in determining what, if any, procedural consequences should follow. There may be some cases in which it is plain that striking out is the only appropriate response.
Grounds
    1. I will now proceed to examine the various features of these claims upon which the defendants rely in support of their case that they amount to an abuse and the claimants’ response thereto. For convenience, I have approached the task by categorising the central contentions under individual headings but recognise that the value of taxonomy lies mainly in convenience of presentation and orderly analysis and that, ultimately, the Court must stand back and take a broad view which takes into account the balance of the competing arguments as a whole.
The practicability of managing the claims in England
    1. The present case is not merely unusual but unique in a number of respects. One of its most distinctive features is that, if it were allowed to proceed, the action in England would involve closely related group claims moving forward in parallel in two different jurisdictions with many of the same claimants in each seeking identical remedies in England and Brazil concurrently. The challenge of managing a GLO, even in the most favourable of forensic conditions, is often by no means straightforward. How the English court would be able to cope, if at all, with the problems likely to be generated by the simultaneous progress of its Brazilian counterpart is an issue which warrants particular scrutiny.
Irreconcilable judgments, collateral attack and cross-contamination of issues
    1. The defendants contend that allowing this action to proceed would give rise to the risk of irreconcilable judgments in Brazil and England. The claimants reject this assertion but argue further that it is a factor which the court is required to disregard against BHP Plc in the context of the abuse argument on the basis that the scope of its relevance should be confined to the consideration of BHP Plc’s reliance upon the Recast Regulation. I will deal in greater detail with the application of the Recast Regulation later in this judgment but, in summary, the court has jurisdiction under Article 34 thereof to stay proceedings brought against a defendant in the court in the jurisdiction in which it is domiciled in certain defined circumstances in which there arises a risk of irreconcilable judgments between the courts of a member and a non-member state.
    2. Furthermore, Owusu v Jackson [2005] QB 801 established that it was not open to the United Kingdom (or any other contracting state) to bypass the regime imposed by the Brussels Convention on the ground that, although the defendant was domiciled in the UK, jurisdiction could be declined by the application of the English common law principle of forum non conveniens.
    3. I would thus readily accept, and the defendants concede, that it would be impermissible to deploy an abuse of process argument in order to achieve through the back door that which the Recast Regulation bars through the front. Nevertheless, in cases in which the risk of irreconcilable judgments is just one of a number of factors relevant to the exercise of the abuse jurisdiction it should not be ignored.
    4. As Coulson J (as he then was) held in Lungowe v Vedanta Resources Plc [2016] EWHC 975 (TCC):

“84. In my view, in an appropriate case, and notwithstanding Owusu, the court must be able to exercise its case-management powers to grant a stay. The court remains the master of its own process and procedure, and it would be a very odd result if the court was obliged to do something that was contrary to good and sensible case management.”

And as Lord Briggs held in Vedanta, on the appeal in the same case:

“17. This does not, of course, prevent any defendant from seeking to have a claim struck out as an abuse of process or as disclosing no reasonable cause of action, or from seeking reverse summary judgment upon the basis that the claim discloses no triable issue against that defendant.”

    1. I respectfully agree with these observations and can see no basis upon which a court should be required, by the application of Owusu or otherwise, to wave through what would otherwise be an abusive claim on the basis that the application to dismiss is based partly upon matters which overlap with considerations of the risk of irreconcilable judgments or, for that matter, the doctrine of forum non conveniens. In any event, it would normally be very difficult, if not impossible and artificial, to attempt to distil out the Recast Regulation and forum non conveniens considerations arising in any given case and to analyse the residue alone for signs of abuse.
    2. Furthermore, the risk of irreconcilable judgments is merely one of the mischiefs to which the aim of avoiding a multiplicity of litigation is directed. As Potter LJ observed in Divine-Bortey v Brent London Borough Council [1998] I.C.R. 886:

“The basis of the rule in Henderson is the avoidance of multiplicity of litigation in relation to a particular subject or set of circumstances in order to avoid the prejudice to a defendant which inevitably results in terms of wasted time and cost, duplication of effort, dispersal of evidence and risk of inconsistent findings which are involved if different courts at different times are obliged to examine the same substratum of fact which gives rise to the subject of litigation.”

    1. To this I would add only that the prejudice identified in this passage may, in any given case, impact not only upon the defendant but also upon the court.
    2. Having closely considered the evidence relating to the issues likely to be adjudicated upon in both Brazil and England, I am satisfied that the risk of inconsistent judgments would be acute in this case in the event that these proceedings were permitted to go ahead in England.
    3. An important example relates to the alleged status of BHP Brasil as an indirect polluter. This is an issue which has a potentially significant bearing on the controversial question of whether or not the defendants in the present proceedings owe the claimants what, in English legal terminology, would amount to a duty of care.
    4. In Brazil, BHP Brasil continues to deny that it is an indirect polluter. Under the 20bn CPA, it accepted, without prejudice, an obligation to fund Renova but only to the level of 50%; with Vale being under a several liability to provide the balance. One of the issues in the 155bn CPA, however, is whether BHP Brasil should, as the Public Prosecutor asserts, be jointly liable with Vale for the whole of the funding. This question remains, as yet, unresolved. If BHP Brasil is liable as an indirect polluter then this provides an important stepping stone in one of the potential routes to establishing the existence of the Brazilian equivalent of a duty of care on the part of the defendants in this jurisdiction. Both sides in the hearing before me accept that if the matter were to proceed in this jurisdiction then this point would very likely fall to be determined as a preliminary issue.
    5. The wasted time, costs and duplication of effort involved in advancing the same case simultaneously in the two jurisdictions would be considerable and liable to give rise to incompossible findings. It would take little creative imagination to foresee many similar issues arising of which this is only one example. This is a matter to which I will return in due course with respect to the Article 34 issue.
    6. Furthermore, the prospect of attempting to manage the claims of over 200,000 claimants where such a high proportion of them are taking (or have taken, or reserve the right to take) steps to achieve compensation in Brazil for the same losses as those in respect of which they wish to establish a right to damages against the defendants in England is nothing short of alarming.
    7. By early 2019, no fewer than 154,766 of claimants in this case disclosed that they had already received money from Renova or had brought their own private proceedings. Significantly, although they concede that they must give credit for compensation already received, they have not, with one exception, relinquished their right to pursue further any claims they may have in Brazil. In an FAQ sheet distributed to potential claimants by the claimants’ solicitors is to be found the following:

“Can the clients file lawsuits in Brazil and in England?

Yes. Customers will not be at a disadvantage in pursuing claims in England and Brazil. Customers cannot be compensated twice. If clients receive compensation in England, the judge in Brazil will probably take this into account when awarding compensation in the same way a judge in England will take into account the compensation granted in Brazil.”

    1. It can safely be predicted that this unremitting cross-contamination of proceedings would lead to utter chaos in the conduct of litigation in both jurisdictions the procedural position of each of which would be in a near constant state of flux. In particular, the utility of the selection of lead cases would be seriously imperilled by the risk that the issues to which they were directed would, as the litigation progressed, be undermined, made redundant or transmogrified by developments in Brazil.
    2. The task facing the managing judge in England would, I predict, be akin to trying to build a house of cards in a wind tunnel.
    3. During the course of submissions, counsel for the claimants floated the suggestion that in the event that these claims were allowed to continue (but not before) then consideration could be given to requiring some or all claimants to relinquish proceedings in Brazil as a condition of proceeding further in England. However, this, in my view, provides no adequate solution to the broader problem of jurisdictional cross-contamination not least because many claimants have already recovered some level of damages in Brazil. Questions are bound to arise as to whether (and to what extent) damages already received in Brazil relate to, or are distinct from, heads of damage which are later pursued in England. Furthermore, in circumstances in which awards have already been made under certain heads of loss in Brazil and the same claim is brought in England, but seeking a higher level of compensation, the English Court is effectively being asked to mark the homework of the judges of a foreign sovereign power.
    4. Moreover, as I have already noted, potential claimants were reassured in the FAQ sheet distributed to them by the claimants’ solicitors that, by joining the group, they would remain entitled to pursue their remedies in Brazil. The implications of later seeking to row back on this important incentive could well, regardless of all the other challenges which it faces, threaten the integrity and future viability of the whole group.
    5. It is not necessary, in my view, to pronounce upon whether or not the invitation to the English court to adjudicate on any or all of the claimants’ claims is capable of falling into the category of “collateral attack” on decisions in Brazil. It is the practical implications of parallel proceedings which are important. In effect, the Brazilian and English judges would constantly be stepping on each other’s toes regardless of the aptness of the label of “collateral attack”. For example, the Brazilian proceedings have undergone a considerable number of potentially significant new developments over the last year which have prompted both the claimants and defendants significantly to revise and add to their evidence and written submissions in the run up to this hearing. The very considerable challenges which this presented both to the Court and to the parties give only a flavour of the magnitude of the (in my view, insuperable) problems which would be generated in the event that these claims were allowed to proceed in England.
    6. Furthermore, the English court would have to face further challenges, if any such were needed, beyond even those that I have already outlined.
    7. In particular, it is confidently predicted that if these proceedings were allowed to go forward in England then the ranks of those presently seeking to make a claim would be swollen still further by many others thereby encouraged to throw in their lot with the existing cohort. But that is not all. Since proceedings were commenced, the claimants’ solicitors have lost contact with no fewer than 37,000 of those on whose behalf they have already commenced proceedings.[3] The risk of claimants dropping out of the litigation is increased by the fact that, in the event of future success in Brazil, they may be tempted to disengage from further prosecution of the English claims. This they may do without adequately or promptly informing their own solicitors of the position. Of course, there will be a degree of ebb and flow of claimants in the context of any group action but the level and rate of turnover in this case would, in practice, be likely to be unmanageable.
    8. Of course, the claimants are right to point out that, generally speaking, a claimant is entitled to choose to sue who she wants in the event that more than one party may be liable in respect of the same losses. It is not normally for the court to dictate where such choice must fall. This rule, however, is not absolute as is illustrated by the decision in AB v John Wyeth & Brother (No.4) to which I have referred earlier. And as Lord Phillips MR said in Jameel v Dow Jones & Co Inc [2005] QB 946 at para 54:

“An abuse of process is of concern not merely to the parties but to the court. It is no longer the role of the court simply to provide a level playing field and to referee whatever game the parties choose to play upon it. The court is concerned to ensure that judicial and court resources are appropriately and proportionately used in accordance with the requirements of justice.”

    1. There is no reference at all to AB in the claimants’ skeleton argument and this might go some way towards explaining how they came to misunderstand and understate the extent to which the impact on the Court is a relevant factor. As paragraph 8 of their skeleton argument boldly declares:

“Moreover, any suggestion that the burden on the Court itself is a ground on which the Court can refuse to entertain properly arguable claims for substantial sums is also wrong in principle; the answer is simply that the Court can and should devise appropriate procedures to deal with the claims proportionately.”

    1. In this context, it is to be noted just how thin were the claimants’ suggestions as to “appropriate procedures to deal with the claims proportionately”. Little more was predicted than the need for the formation of a GLO and the determination of a preliminary issue relating to the existence of the defendants’ alleged status as indirect polluters and the selection of lead cases. Beyond that, I was airily assured that, particularly if I were to be appointed to be the managing judge, any difficulties would be readily surmountable. I was as flattered as I was unconvinced. Robust case management is a tool not a magic wand.
    2. Of course, it may be speculated that, if the claims were permitted to proceed, then the defendants could seek to bring them to a conclusion by offering, for example, a lump sum by way of settlement. However, this is by no means guaranteed and, in any event, it would be wrong, in the circumstances of this case, to permit an abusively unmanageable claim to proceed in the hope that its abusive unmanageability would catalyse a compromise.
    3. It is simply not good enough in the context of group actions generally to seek to outsource all or most of the responsibility for devising a workable procedural mechanism for resolving the claims to the court. In any event, had the claimants attempted to provide more assistance on this point, I am satisfied that such detail would have fared badly under scrutiny. It is not, however, an option to avoid such scrutiny through silence.
    4. In all the circumstances, I am entirely satisfied that these claims would be not merely challenging but irredeemably unmanageable if allowed to proceed any further in this jurisdiction.
    5. Even if, contrary to my findings above, proceedings in England were practically workable, they would still have a very significantly deleterious impact indeed upon the scarce resources of the English courts. The serious further collateral complications arising from the practical consequences of the fact that very many similar or identical claims are proceeding in Brazil would pile Pelion on Ossa. I will, however, deal with the remaining practical challenges, albeit briefly, for the sake of completeness. They should, however, not be underestimated.
    6. Management of the group would be allocated to a High Court Judge. The selection of lead cases would not be from a homogeneous group but from an immense pool of claimants with grossly disparate interests. To reflect this, the number of such lead cases would be likely to be far in excess of those selected in any GLO to date. Repeated visits to the Court of Appeal generating further costs, delays and uncertainties would be almost inevitable. There has already been one such expensive and abortive initiative in this case which was launched even before I had handed down this substantive judgment. In the meantime, developments in Brazil over the time which it would be likely to take for any given appeal to reach the Court of Appeal would be liable to complicate matters still further with applications by the parties to rely on fresh evidence. The prospect of almost interminable transatlantic iteration is both stark and real.
    7. Attempts may be made to mitigate these consequences but I am wholly satisfied that they would achieve very little, if anything. For example, a scheme of compensation (the very formation of which would, in any event, depend upon the doubtful cooperation of the parties) would run the risk of either significantly duplicating the work of Renova or of generating mutually irreconcilable methods of claim resolution.
    8. Then there is the challenge of language.
    9. Almost all of the claimants and many of the potential witnesses for both sides speak Portuguese as their first or only language. Proceedings would be inevitably and very significantly lengthened and rendered more expensive by the need for the extensive involvement of interpreters.
    10. Moreover, there can be no question that litigation in England would require the translation of a very considerable quantity of documents from Portuguese into English. The costs of translation would be bound to be very high and the delays generated significant.
    11. There also arises the very real danger of mistranslation leading to error. The existence of such a risk, which I do not seek to exaggerate, is illustrated by the following extract from the transcript of proceedings on the morning of the last day of the hearing before me:

“MR HOLLANDER QC Your Lordship asked about the translation of the bit in the 155bn CPA, where the words “strictly affected” were used.

We have — the translation is completely wrong.

It means something quite different. We haven’t raised that with the other side yet. We need to do that. We will write to your Lordship, perhaps early next week, once we’ve had a chance to show what we think it means.”

  1. In short, had I not raised the issue directly, the construction of an important part of a potentially significant document in the case would have been based on a translation which was “completely wrong” and the inaccuracy of which had remained undiscovered until the Court had already heard seven days of submissions. It is fortunate, in the event, that my decision does not turn upon the meaning of this passage.
  2. The English court would be further disadvantaged in having to apply Brazilian law with which it had had no previous familiarity whereas the courts in Brazil are fully acquainted with, and experienced in, its scope and application. If the expert evidence deployed for the purposes of this hearing, which sprawls dispiritingly over 600 pages of reports (not counting appendices), is anything to go by, then the chances of complete agreement between the parties as to what the law of Brazil might be in any given circumstances are remote indeed.
  3. Furthermore, it is very unlikely, under Brazilian law, that any claimant or witness would be permitted to give evidence to an English court remotely from Brazil. Even less likely is it that an English judge would ever be permitted to sit in Brazil. It must follow that the time and expense involved in transporting claimants and witnesses to England, accommodating them here and flying them back is likely to be very high. The real possibility of quarantine restrictions arising from the Covid 19 pandemic has the potential, at least in the short term, to exacerbate these challenges.
  4. Moreover, whatever the chances of any given claimant obtaining full redress in Brazil it is almost a certainty that she will not achieve it in England. With limited exceptions, the claimants have agreed to pay their solicitors a success fee of up to 30% out of any damages recovered in these proceedings. There is nothing improper (by modern standards) in such an arrangement and the claimants obviously and seriously believe that it is a sacrifice worth making. However, even taking into account any shortcomings of the Brazilian processes, of which more later, there is no need for any claimant there to forfeit a high proportion of her damages in order to fund her claim. Legal aid is available for individual claims and engagement in the Renova scheme gives rise to no costs liability.
  5. On the face of it, these factors might lead the casual observer to wonder what perceived advantages could lure 202,600 claimants into agreeing to participate in proceedings in England. The defendants claim that much of their enthusiasm is likely to have been kindled by misunderstandings arising from over-optimistic claims made either by their solicitors or those purporting to speak on their behalf.
  6. It has been reported, for example, that suggestions have been made that awards of damages will be very much more generous in England than in Brazil. This is notwithstanding the fact that the damages would, in fact, be calculated here by the application of Brazilian law. It has also been said that, conveniently, the English judge would come to sit in a hotel in Minas Gerais to hear evidence from claimants and witnesses when, as an encroachment on national sovereignty, this is simply not permissible under Brazilian law.
  7. It has even been suggested (but on what possible basis I know not) that, in general, claimants are likely to get a more sympathetic hearing in Liverpool than in London.
  8. I indicated at an early stage of the hearing that I did not consider that it would be a proportionate use of my time to seek to draw any relevant conclusions from these allegations. Accordingly, having noted them, I do not take them into account in my adjudication. Nevertheless, whatever the source of the claimants’ enthusiasm for the prospect of litigation in England, which I assume to be genuinely felt, I consider their collective optimism to be deeply and irredeemably flawed.
  9. It follows that I am satisfied that it has been clearly proved that these claims amount to an abuse of the process of the court. In the words of Lord Bingham in Barker, they amount to “a use of the court process for a purpose or in a way which is significantly different from the ordinary and proper use of the court process”.
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