Exceptional Circumstances: CPR 52.30 and a lesson on drafting grounds of appeal from the Court of Appeal

The Court of Appeal has given guidance on how to draft grounds of appeal in a rap over the knuckles for lawyers responsible for "over-lengthy and ill-focused" grounds (Municipio de Mariana v (1) BHP Group PLC and (2) BHP Group Ltd(i)).

A group claim was issued in England in 2018 by 200,000 claimants, including individuals, businesses, churches, organisations, municipalities and indigenous people affected by the 2015 Fundão dam disaster in Brazil against the joint venture that owned and operated the dam. It was thought to be the largest group claim ever brought in England.

Prior to issue of the English claims, a separate group claim in the Brazilian courts had led to the creation of the Renova foundation, which was intended to provide compensation for individuals, while another, larger, group claim, had been stayed since January 2017.

The defendants applied for the claims in England to be struck out or stayed. The application was heard by Mr Justice Turner in July 2020, who found that the claims should be struck out as they were so "irredeemably unmanageable" as to be an abuse of process, and futile, in light of the parallel group claims in Brazil. The judge went on to say that if the claims had not been struck out, they would have been stayed under Article 34 of Brussels I Recast and on forum non conveniens grounds.

Permission to appeal the judge's decision to strike out the claims was refused on paper by Coulson LJ. The claimants applied to re-open that refusal to grant permission to appeal under CPR 52.30. The bar under r.52.30 is a high one: the court will not re-open a decision unless it is necessary to avoid real injustice, the circumstances are exceptional and there is no alternative remedy. The provision has accordingly very rarely been used successfully.

The application was heard by Sir Geoffrey Vos MR, Lord Justice Underhill, and Lady Justice Carr at an oral hearing in the Court of Appeal.

Decision

The Court of Appeal found that Coulson LJ had failed properly to grapple with the four main points raised by the Claimants' application for permission to appeal:

1. The judge had had no legal basis to strike out the claims as an abuse of process on the ground of "irredeemable unmanageability". He did not explore whether or not a finding of unmanageability could justify a claim's strike out at all, or only in circumstances where, as the claimants argued, it had not been shown that full redress had been secured in Brazil.

    

2. The judge had elided the principles applicable to abuse of process and to jurisdiction so as to invent a concept of "jurisdictional abuse", whereby the risks associated with having parallel proceedings in Brazil were recognised as making the English proceedings an abuse of process. The Court of Appeal expressed concern about the brevity of Coulson LJ's treatment of this point but did not think that the CPR 52.30 challenge could succeed on this ground alone.

    

3. The judge had had no basis to strike out claims brought as of right against defendants duly served within the jurisdiction and had ignored Article 4 of Brussels I Recast which provides that, subject to the other provisions of the Regulation, a person domiciled in a Member State shall be sued in that Member State. The Court of Appeal was more troubled by Coulson LJ's treatment of this point, saying that "it is not an answer to the argument that a claimant, who is not suing elsewhere, has the right to sue a defendant who can properly be served within the jurisdiction, to say that the proceedings are unmanageable or complex."

    

4. The judge had misapplied the principles in Henderson v Henderson (1843), so as to prevent numerous claimants who had not made claims in Brazil from bringing claims in England. This was a subset of the Article 4 point above that Coulson LJ had failed to grapple with; unmanageability or complexity was not an answer to the claimants who had brought no other claims.

In light of the above, the Court of Appeal decided to re-open Coulson LJ's refusal under CPR 52.30 on the basis that the points he had failed to address were fundamental to the permission decision and, had he grappled with them, there was a strong possibility that he would have granted permission. The panel went on to grant permission to appeal the judge's strike out ruling.

Commentary

This was a highly unusual case in which the Court of Appeal re-opened an appellate judge's decision to refuse permission to appeal under CPR 52.30. However, the circumstances were "truly exceptional" and must be seen in that light: this is unlikely to herald a more liberal attitude towards the use of this provision in the future.

Instead, the most important practical implications of this case arise from the guidance the Court of Appeal gave to practitioners regarding drafting the grounds of appeal. The structure of the grounds of appeal (including the accompanying particulars which elaborated on those grounds) and the skeleton argument may have contributed to the failure of the appellate judge to understand the main points raised. Indeed, the court noted that it is far too often presented with grounds which are "over-lengthy and ill-focused" and where the distinct roles of the grounds and skeleton argument are not observed.  It therefore advised appellants to:

• keep advocacy in the skeleton and out of the grounds. The grounds are an analytical tool to enable the court to identify the issues it is being asked to decide;
• clearly and concisely articulate the specific errors the court below is alleged to have made in the grounds; and
• separately number each ground, make clear how they interrelate, and specifically identify the passages in which the judge appealed is said to have gone wrong.

(i) [2021] EWCA Civ 1156