THOUSANDS OF DOCUMENTS AND LEAVING SOME POINTS ON THE CUTTING ROOM FLOOR: THE JUDGE’S LAMENT

In  Município De Mariana & Ors v BHP Group Plc & Anor [2020] EWHC 2930 (TCC) Mr Justice Turner allowed the defendants’ application to strike out the claim being brought by 202,600 claimants.   Here we look at the observations in relation to the documentary evidence presented.

“The trial bundles comprise 2,085 items set out in 30,015 pages which have been “distilled” into no fewer than five core bundles. There are nine further bundles containing 127 authorities. The defendants’ skeleton argument was 187 pages long and was the product of the collective endeavours of three leading and four junior counsel. The claimants, not to be outdone, deployed a skeleton argument which was 211 pages long and, by the end of the hearing, had been supplemented incrementally by no fewer than 22 appendices the steady flow of which gave rise to a growing frisson of resentment on the part of the defendants. Submissions lasted for eight full days and have been recorded in a transcript which is about 1,200 pages in length.”

THE CASE

202,600 claimants issued proceedings following the collapse of the  Fundão dam in south eastern Brazil.  The defendants sought an order that the action be struck out, or stayed.  That application was successful.

THE JUDGE’S OBSERVATIONS AS TO THE DOCUMENTARY MATERIAL

The judge commented on the amount of material placed before the court.

5. The amount of documentary material which has been deployed by the parties to date is vast.

1. 1. In particular, much of the evidence relates to the question of whether full and timely redress is available to these claimants in Brazil and what impediments stand in their way of achieving it. The following factors, among others, have played a part in explaining (but not wholly excusing) the quantity of material which the parties have chosen to deploy:

(i) The huge number of claimants;

(ii) The disparate nature of the claims which they bring;

(iii) The significant contrasts between Brazilian procedural law and the English Civil Procedure Rules;

(iv) The complex history of proceedings to date in Brazil and competing predictions as to their likely future.

1. 1. These features, however, go only some way towards justifying the accumulation of huge swathes of documentation. The trial bundles comprise 2,085 items set out in 30,015 pages which have been “distilled” into no fewer than five core bundles. There are nine further bundles containing 127 authorities. The defendants’ skeleton argument was 187 pages long and was the product of the collective endeavours of three leading and four junior counsel. The claimants, not to be outdone, deployed a skeleton argument which was 211 pages long and, by the end of the hearing, had been supplemented incrementally by no fewer than 22 appendices the steady flow of which gave rise to a growing frisson of resentment on the part of the defendants. Submissions lasted for eight full days and have been recorded in a transcript which is about 1,200 pages in length.

   2. In this context, I am reminded of the observations of Lord Briggs in Lungowe v Vedanta Resources Plc [2019] 2 WLR 1051:

“6. It is necessary to say something at the outset about the disproportionate way in which these jurisdiction issues have been litigated. In Spiliada Maritime Corpn v Cansulex Ltd (The Spiliada) [1987] AC 460, 465, Lord Templeman said this, about what was, even then, the disproportionate manner in which jurisdiction challenges were litigated:

“In the result, it seems to me that the solution of disputes about the relative merits of trial in England and trial abroad is pre-eminently a matter for the trial judge. Commercial Court judges are very experienced in these matters. In nearly every case evidence is on affidavit by witnesses of acknowledged probity. I hope that in future the judge will be allowed to study the evidence and refresh his memory of the speech of my noble and learned friend Lord Goff of Chieveley in this case in the quiet of his room without expense to the parties; that he will not be referred to other decisions on other facts; and that submissions will be measured in hours and not days. An appeal should be rare and the appellate court should be slow to interfere.”

That dictum is, in my mind equally applicable to all the judges in what are now the Business and Property Courts of England and Wales, including, as in this case, the Technology and Construction Court.”

1. 1. During the course of the hearing, I expressed concern to Mr Gibson QC, representing the defendants, about the quantity of material which had been deployed by both sides. His explanation relied partly upon the complexity of the proceedings in Brazil and partly upon the need to respond to the submissions raised and evidence submitted on behalf of the claimants in what, to my mind, had deteriorated into a forensic arms race.

   2. The first case management conference to be listed before me took place just three weeks before the hearing had been due to commence. I was presented with a fait accompli in terms of the volume of material which had already been collated and deployed by the parties over the preceding period of seven months. I took the view that any attempt retrospectively, and at the eleventh hour, to limit such material would be likely to do more harm than good. The parties would be distracted from the task of preparing the case and there would almost inevitably have arisen time consuming disputes as to what material should be abandoned and what retained. The genie was already out of the bottle. For these reasons, I indicated that I would proceed on a “we are where we are” basis. I permitted the parties to serve further evidence to deal with specifically defined recent developments in the Brazilian proceedings but to be strictly confined to no more than 20 pages each.

   3. Notwithstanding the superabundance of material before me, the claimants sought, close to the end of the hearing, to raise an entirely new issue. I refused to entertain the point and my ruling to this effect was challenged by way of an application to the Court of Appeal for permission to appeal. This application was subsequently abandoned but not before it was necessary for me to respond further to an application by the claimants that I should revisit my decision and change my mind. The resulting judgment, to which I have already referred in passing above, itself extends to 97 paragraphs and is to be found at Município De Mariana v BHP Group Plc [2020] EWHC 2471 (TCC).

   4. I will say no more about the accumulation of documentation in this case, or the recent procedural distractions, and will not seek, at this stage at any rate, to allocate responsibility or blame for the state of affairs which has arisen. Nevertheless, I must (and will) resist the temptation to enter the lists of competitive prolixity with a substantive judgment of commensurate length. If I were to reproduce the detail of all the materials presented for my consideration and attempt to resolve every disputed issue of primary fact or secondary inference, the result would be a paradigm of the law of diminishing returns.

   5. As the Court of Appeal held in Customs and Excise Commissioners v A and Another [2003] Fam 55:

“82 A judge’s task is not easy. One does often have to spend time absorbing arguments advanced by the parties which in the event turn out not to be central to the decision-making process…

83 However, judges should bear in mind that the primary function of a first instance judgment is to find facts and identify the crucial legal points and to advance reasons for deciding them in a particular way. The longer a judgment is and the more issues with which it deals the greater the likelihood that: (i) the losing party, the Court of Appeal and any future readers of the judgment will not be able to identify the crucial matters which swayed the judge; (ii) the judgment will contain something with which the unsuccessful party can legitimately take issue and attempt to launch an appeal; (iii) citation of the judgment in future cases will lengthen the hearing of those future cases because time will be taken sorting out the precise status of the judicial observation in question; (iv) reading the judgment will occupy a considerable amount of the time of legal advisers to other parties in future cases who again will have to sort out the status of the judicial observation in question. All this adds to the cost of obtaining legal advice.

84 Our system of full judgments has many advantages but one must also be conscious of the disadvantages.”

1. 1. Where, therefore, I have omitted reference to any aspect of a party’s case it is because I have considered that its importance is not sufficient to impact upon my central conclusions and that it would be disproportionate to include reference to it in my judgment. It does not mean, by such omission, that I have either not understood it or have failed to consider it. As I put it in similar circumstances in Kalma v African Minerals Ltd [2018] EWHC 3506:

“63…for the sake of proportionality, I have had to leave a very considerable number of these points on the cutting room floor. This does not mean that I have failed to consider them or that I have discarded them as being entirely redundant but merely that the inclusion of their analysis or resolution in an already lengthy judgment would not have had a material impact on the determination of the central issues.”