BLOATED DRAFT GROUNDS OF APPEAL AND RELENTLESS DOCUMENTARY ATTRITION: NOT A GOOD START WHEN SEEKING PERMISSION TO APPEAL

The judgment of Mr Justice Turner in Municipio De Mariana & Ors v BHP Group PLC & Anor [2021] EWHC 146 (TCC) sets out the judge’s concerns in relation to the over-lengthy documents filed in support of an application for permission to appeal.

“The claimants’ approach in this case does not amount to a matter of mere formal procedural non-compliance. Their bloated draft grounds serve only to obfuscate rather than to illuminate what they may perceive to be the merits of their challenge. This, in turn, gives rise to the risk that a judge, whether at first instance or on appeal, may be persuaded to give permission to appeal not through a focussed analysis but having been worn down by a process of relentless documentary attrition. With draft grounds of this length, combined the benefit of bitter experience, I am not optimistic that any greater self-restraint will be exercised in the drafting of any future skeleton arguments.”

 

THE CASE

The judge had earlier struck out the claimants’ case. That decision is set out at length in a post here.

The claimants then sought permission to appeal.  This judgment is in relation to that appeal.

 

THE JUDGMENT IN RELATION TO PERMISSION TO APPEAL

PERMISSION TO APPEAL
    1. As a general rule, an application for permission to appeal made to the judge whose decision is sought to be challenged leads to that judge filling in Form N460 which provides space for: “Brief reasons for decision to allow or refuse appeal”. However, in cases of particular complexity, the Court of Appeal has recently encouraged first instance judges to descend into greater detail. As Floyd LJ observed in Teva UK Ltd v Boehringer Ingelheim Pharma GmbH & Co KG [2016] EWCA Civ 1296:

“13…This court will always be assisted, therefore, if the judge takes the time to give full reasons for refusing permission, as Morgan J did in this case.”

I am entirely satisfied that this is a case the circumstances of which justify (and, indeed, require) the provision of fuller reasons than would generally be considered to be appropriate in response to an application for permission to appeal. I fully recognise that it will only very rarely be proportionate for a judge at first instance to embark upon as lengthy a consideration of the question of permission to appeal as appears in this judgment. There are, however, particular features of this case which I believe validate this approach.
    1. Importantly, whilst fully acknowledging that the nature and scale of these claims were always bound to generate some level of complexity in this litigation, I have to say that much of the morass of detail which this Court has had to consider is the product of chronic forensic hyperactivity.
    2. I made no secret of my concerns in this regard in my substantive judgment:

“7. 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.”

    1. Perhaps it would have been naïve of me to have expected that these observations might have had some, at least modest, impact on the conduct of this litigation thereafter.
    2. Even if the claimants had reached the view that my concerns had been idiosyncratically over-stated, they still had, at least, the benefit of the more authoritative requirements of para 5 of PD52C which provides:

Grounds of Appeal

5(1) The grounds of appeal must identify as concisely as possible the respects in which the judgment of the court below is –

(a) wrong; or

(b) unjust because of a serious procedural or other irregularity, as required by rule 52.21(3).

(2) The reasons why the decision under appeal is wrong or unjust must not be included in the grounds of appeal and must be confined to the skeleton argument.”

    1. I do not understand how it could possibly have been thought that the draft grounds of appeal now before me could be considered to be compliant with the Practice Direction. The draft relied upon comprises no fewer than 70 paragraphs spread out over 39 closely typed pages. This is the very antithesis of the conciseness required by the Practice Direction. Furthermore, the document is replete with material which is plainly intended to be excluded under para 5(2) of PD52C.
    2. As Nugee J (as he then was) observed in Les Grands Chais de France SAS v Consorzio di Tutela della Denominazione di Origine Controllata Prosecco [2020] EWHC 1633 (Ch):

“33. The Appellant’s Grounds of Appeal is a long and diffuse document (running to 11 pages and 44 paragraphs) and does not identify separate numbered grounds in the usual way. The Practice Direction governing appeals to the Court of Appeal ( Practice Direction 52C ) provides that the Grounds of Appeal must identify as concisely as possible “the respects in which” the judgment of the Court below is wrong (or unjust because of a serious procedural or other irregularity), contrasting this with “the reasons why” the decision under appeal is wrong (or unjust), and expressly provides that the latter must not be included in the Grounds of Appeal and must be confined to the skeleton argument (PD 52C para 5(1), (2)). That makes it clear that the purpose of the Grounds of Appeal is to identify the grounds relied on, not argue them.

34. … The Grounds of Appeal should therefore in my judgment be a short document concisely identifying (and numbering) the separate grounds relied on in support of the appeal; it should not develop or argue the Grounds which is a matter for the skeleton argument.”

    1. The claimants’ approach in this case does not amount to a matter of mere formal procedural non-compliance. Their bloated draft grounds serve only to obfuscate rather than to illuminate what they may perceive to be the merits of their challenge. This, in turn, gives rise to the risk that a judge, whether at first instance or on appeal, may be persuaded to give permission to appeal not through a focussed analysis but having been worn down by a process of relentless documentary attrition. With draft grounds of this length, combined the benefit of bitter experience, I am not optimistic that any greater self-restraint will be exercised in the drafting of any future skeleton arguments.
    2. In this context, the defendants have sought to argue that what they have described as the “over-optimistic approach” of the claimants’ legal team with respect to this application may best be explained as a means by which they hope to sustain the continued loyalty of the claimants to this litigation in the demoralising face of my adverse substantive judgment. It is to be noted in this context that, long before the hearing before me had even commenced, no fewer than 37,000 claimants have either been double counted or appear already to have lost interest in pursuing their claims without giving any notice, formal or otherwise, of their intention so to do.
    3. The defendants, in the ninth witness statement of Efstathios Michael, have drawn the attention of the Court to the following:

“27…the following public statements have been made by Mr Goodhead of PGMBM, who has responsibility for the conduct of these proceedings on behalf of the Claimants. Mr Goodhead has, since the Judgment was handed down, said the following in numerous press articles and public statements:

(1) “the decision is fundamentally wrong and ignored basic British and European laws.”;

(2) “this is a shameful misrepresentation of the situation…we are carefully studying the decision and we are all of the same opinion: that it is extremely likely that our appeal will be successful”;

(3) “this [Judgment] is an abuse and an insult to the affected parties. We will appeal immediately… We will sue them (BHP) until the end of the world”;

(4) “what amazed us was how the judge let himself be confused by the artifices of BHP Billiton’s lawyers… It was a very flawed proceeding, which undermines 30 years of precedents and practice in the English courts”; and

(5) “BHP’s legal chicanery…has resulted in a fundamentally flawed judgment that we intend to appeal immediately…we are overwhelmingly confident that it will be overturned… BHP have arrogantly and disgracefully labelled this litigation as ‘pointless and wasteful'”.

    1. Doubtless, the defendants would seek to argue in this context that the audience to which the draft Grounds of Appeal are more comfortably directed is the claimants themselves (or future potential claimants) as part of an unsubtle recruitment and retention initiative rather than to this Court.
    2. This is not a point upon which it would be helpful for me to adjudicate. I do, however, consider that Mr Goodhead’s public accusation that the defendants were guilty of “legal chicanery” in either the formulation or presentation of their arguments before me is, even putting the matter at its lowest, both extremely regrettable and entirely without substance. I will assume, in his favour, that Mr Goodhead did not fully understand what the word “chicanery” means before he chose to deploy it.
    3. Nevertheless, for my own part, it is essential that I must stress that my adjudication on the application for permission to appeal and all other outstanding ancillary matters will remain uncontaminated by what Mr Goodhead has since acknowledged to have been his “somewhat hyperbolic” utterances. A judge responding to an application for permission to appeal his own judgment must be particularly sensitive to the perception that he is marking his own homework and, in this case, I wish to emphasise that my approach remains, as the parties are fully entitled to expect, entirely objective.
    4. The fact remains, however, that, setting aside speculation as to the explanation for the tumidity of the draft grounds, my task and, I have little doubt (since this application to me for permission to appeal will be refused), that of one or more judges of the Court of Appeal has, as a result, been made far more time consuming than ought to have been necessary.
    5. Against this background, and with the advantage of having heard eight days of oral argument at first instance, I will attempt to strike a balance between, on the one hand, descending into too much detailed analysis of the draft grounds and, on the other, failing to provide the Court of Appeal with a level of appropriate assistance when, in due course, it faces the task of considering the merits of the proposed appeal.
    6. In A v G, N (by his guardian, CP) [2009] EWHC 2096 (Fam), it was unsuccessfully argued on behalf of the losing party that:

“…experience shows that if you set out your detailed reasons for asking leave – effectively disclosing your intended grounds of appeal – then judges use that as an opportunity in Form N460 to embellish and add to their Judgments and to influence the Court of Appeal against the appellant. It is for the Court of Appeal to determine appeals and applications thereto for Leave to Appeal and in my submission the introduction of Form N460 was wrong because it allows the Judge under appeal to be effectively heard in the Court of Appeal via his response to a leave application in the lower court.”

Although this contention was rejected by the court in that case, I am sensitive to the dangers of fuelling any adverse perception arising from the detail to which I have descended in my analysis of the draft grounds of appeal. My reasons for refusal are not to be construed as amounting to a rear-guard action to add to, embellish upon or shore up that which is already set out in the substantive judgment. Accordingly, I will aim to confine myself to relatively brief (and, I emphasise, by no means comprehensive) observations upon each draft ground. I will also strive to confine my response to this application to matters which have already been articulated within the judgment itself the reasoning behind which will and must remain unchanged and unqualified by what follows.