Municipio De Mariana & Ors v BHP Group Plc & Anor

A party cannot introduce a substantial new issue at the eleventh hour merely because the supporting evidence was already before the court. A skeleton argument is not a pleading, but it must identify and confine the areas of controversy. The court may exclude an issue under Civil Procedure Rules 1998, Part 3.1 where its late introduction would prejudice the other party, derail the hearing or undermine the overriding objective. Primary facts may be undisputed while secondary inferences remain contestable, so the opposing party may require further evidence or submissions. A case-management decision of this kind involves the exercise of discretion. Where permission to appeal is sought against such a ruling, the application should ordinarily be determined before the substantive judgment if the ruling may affect the factual basis of that judgment.

The judgment concerned approximately 202,600 claims arising from the Fundão dam disaster in Brazil. The defendants had applied on several procedural grounds for the claims against them to be stopped or stayed. During the hearing, the claimants sought to rely on a previously unpleaded and unargued issue concerning whether Samarco could meet any judgment obtained against it. The judge excluded the issue as having been raised too late and as requiring the defendants to be given an opportunity to respond.

The claimants then sought permission to appeal directly from the Court of Appeal and invited the judge to reconsider his ruling. The central issues were whether the judge had been entitled to exclude the issue and whether the permission application should be determined before or after the substantive judgment.

1. The reconsideration request was refused. The judge maintained his ruling that there was no evidence relied upon before him to suggest that Samarco might be unable to pay.
2. A skeleton argument is not a pleading, but it is required by PD52A 5.1(2) to define and confine the areas of controversy. That principle applies, at least generally, to first-instance hearings. It does not give a party carte blanche to introduce an entirely new issue at the end of a hearing.
3. Under Civil Procedure Rules 1998, Part 3.1(2)(k), the court may exclude an issue from consideration where that is appropriate to further the overriding objective. The power does not confuse a skeleton argument with a pleading.
4. The late issue could not fairly be treated as involving only undisputed documentary facts. Even if the primary contents of the documents were accepted, the defendants could challenge the inferences drawn from them and might need further evidence or submissions. Allowing that response would have caused substantial delay, expense and disruption, all resulting from the claimants’ failure to raise the issue earlier.
5. The ruling was a pure case-management decision involving the exercise of discretion. The judge therefore declined to change his mind after considering the grounds of challenge. The observations in T (A Child) [2002] EWCA Civ 1736 concerning applications for permission to appeal to the trial judge applied with equal force to civil proceedings. The guidance in English v Emery Reimbold & Strick Ltd [2002] 1 W.L.R. 2409 also supported seeking fuller reasons from the trial judge where lack of reasons was alleged.
6. The Court of Appeal should determine the permission application, and any resulting appeal, before the substantive judgment. If the ruling were overturned, the matter might need to be remitted for consideration of the excluded evidence. Handing down the substantive judgment first could therefore require an ex post facto reconstruction of its factual findings.

The judgment records that the claimants had lodged an application for permission to appeal directly with the Court of Appeal against the ruling made on 30 July 2020. This court declined to reconsider that ruling and directed that the permission application should be dealt with before the substantive judgment was handed down.