“17. Further, if any of the English Claimants brought a claim in Brazil against Renova for compensation for losses suffered as a result of the Dam collapse, Renova would not argue that it is not obliged to make full redress to them. However, challenges could be made on whether or not that specific plaintiff suffered loss or damage, whether loss or damage has been caused by the dam break and is recoverable under Brazilian law and on the quantum of the compensation sought.”
“…Where, as in [Wyeth], 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…”
“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.”
“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.”
“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’.”
“… misuse of [the court’s] 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.”
“… there is any realistic prospect of a trial yielding any tangible or legitimate advantage such as to outweigh the disadvantages for the parties in terms of expense, and the wider public in terms of court resources.”
“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”
“The incompleteness of data and the difficulties of interpreting what survives are frequent problems with which the civil courts and tribunals wrestle on a daily basis. The likely cost and burden of disclosure may well require skilled case-management. But neither justifies the denial of practicable access to justice to a litigant or class of litigants who have a triable cause or action, merely because it will make quantification of their loss very difficult and expensive…”
“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 on the basis that the claim discloses no triable issue against that defendant.”
“69. … But the power cannot be used in a manner which is inconsistent with the Judgments Regulation. … Where the court has jurisdiction under the Judgments Regulation, the power of the court to stay proceedings cannot be used simply because another state is the forum conveniens … 70. … I would accept that there is a power to stay English proceedings in favour of insolvency proceedings in a Regulation state to prevent injustice, but it would require exceptionally strong grounds for the English court to exercise that power … [o]therwise, the court would be circumventing the Judgments Regulation by introducing forum non conveniens principles by the back door. 71. In my judgment none of the factors relied on by Mazur GmbH is such individually or collectively as to amount to such exceptional circumstances as to justify a stay. Each of the factors relied on is a typical forum conveniens factor: the cost of proceedings; the limited value of a damages judgment in the German insolvency; the availability of the German court to determine title to the masters; and the multiplicity of proceedings and danger of inconsistent judgments. I do not consider that these are legitimate considerations in a case where the court has jurisdiction under the Judgments Regulation …”. (2) MAD Atelier International BV v Manès[2020] EWHC 1014 (Comm) ,[2020] QB 971 . There at para. [81] Bryan J referred to para. [69] of Mazur, repeating that the court’s power to stay could not be used in a manner inconsistent with the Judgments Regulation, and continued: “(3)…A defendant should not be permitted “under the guise of case management, [to] achieve by the back door a result against which the ECJ has locked the front door”: Skype Technologies SA v Joltid Ltd [2011] I.L. Pr. 8, para 22 (Lewison J).”
“(23) This Regulation should provide for a flexible mechanism allowing the courts of the Member States to take into account proceedings pending before the courts of third States, considering in particular whether a judgment of a third State will be capable of recognition and enforcement in the Member State concerned under the law of that Member State and the proper administration of justice. (24) When taking into account the proper administration of justice, the court of the Member State concerned should assess all the circumstances of the case before it. Such circumstances may include connections between the facts of the case and the parties and the third State concerned, the stage to which the proceedings in the third State have progressed by the time proceedings are initiated in the court of the Member State and whether or not the court of the third State can be expected to give a judgment within a reasonable time. That assessment may also include consideration of the question whether the court of the third State has exclusive jurisdiction in the particular case in circumstances where a court of a Member State would have exclusive jurisdiction.”
“For the purposes of this article, actions are deemed to be related where they are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings.”
“… I am of the view that there should be a broad common sense approach to the question whether the actions in question are related, bearing in mind the objective of the article and applying the simple wide test set out in article 22 and refraining from an over-sophisticated analysis of the matter.”
“On a broader interpretation, the list of areas in which potentially irreconcilable judgments are liable to arise is almost endless. By way of example only: (i) What health consequences can and cannot be attributed to the pollution? (ii) What heads of damages are permissible as a matter of Brazilian Law? (iii) What geographical areas were affected by the pollution? (iv) What is the appropriate quantum of damages in any individual case?”
“I further took the view, although it is not necessary for my determination of this case and indeed was not a position advanced by the defendants, that the process of homologation (or ratification) by the Brazilian court of any agreement under the 155bn CPA would be, in itself, a judgment falling within the scope of Article 34. In this regard, the entirety of the issues arising under the 155bn CPA, whether or not subject to agreement between the parties, would fall within the range of potentially irreconcilable judgments.”
“Under art 34, the next question is whether it is expected that the Ukrainian courts will give a judgment capable of recognition and – where applicable – enforcement in England and Wales. This criterion relates to the recognition and enforceability of a judgment of the third state in principle. The court of the member state cannot be expected to decide one way or the other whether the court in the third state will in fact give a judgment in future, though the apparent likelihood of its doing so or not doing so would be relevant to the exercise of discretion or the question of whether it was necessary in the interests of the proper administration of justice to grant a stay. At this stage of analysis, however, the question of recognition and enforcement is one of principle.”
“In the fourth place, the rules applicable as between Member States contemplate that the court will not merely stay its proceedings. Provided that the court first seised confirms its own jurisdiction, other courts must decline jurisdiction in a lis pendens case (Art.29(3)) and may do so in the context of related actions (Art.30(2)). By contrast, under the new procedures applicable to relations with the courts of non-Member States, the court of the Member State will only ever stay its proceedings until the proceedings in the non-Member State have resulted in a judgment capable of recognition or enforcement in the Member State. At that point, the Member State court must dismiss its action in [a] case involving lis pendens (Art.33(3)) and may do so in a related action case (Art.34(3)). But until that time the Member State court may continue the proceedings at any time if the non-Member State proceedings are themselves stayed or discontinued; or are unlikely to be concluded within a reasonable time; or continuation is “required for the proper administration of justice”: Art.33(2). In the case of related actions, all of these grounds apply and continuation may also be ordered if there is no longer a risk of irreconcilable judgments: Art.34(2)(a). The stay in all such cases is therefore temporary until the foreign proceedings result in a judgment enforceable in the Member State. The rule thus operates as a tool of case management, rather than allocating jurisdiction as it does as between the courts of Member States.”
“39. Following Owusu v Jackson the English court has one hand tied behind its back. No more can it stay the proceedings against the anchor defendant on forum conveniens grounds. This is the precise ratio of Owusu v Jackson, and the Court of Justice was fully aware of the difficulties which that conclusion would be likely to cause in the traditional exercise of the English court’s forum conveniens jurisprudence in such cases. The result is, in a case (such as the present) where the English court is persuaded that, whatever happens to the claim against the foreign defendant, the claimants will in fact continue in England against the anchor defendant, the risk of irreconcilable judgments becomes a formidable, often insuperable, obstacle to the identification of any jurisdiction other than England as the forum conveniens. Thus not only is one of the court’s hands tied behind its back, but the other is, in many cases, effectively paralysed. In the context of group litigation about environmental harm, the defendants say that it has the almost inevitable effect that, providing a minimum level of triable issue can be identified against an English incorporated parent, then litigation about environmental harm all around the world can be carried on in England, wherever the immediate cause of the damage arises from the operations of one of that group’s overseas subsidiaries. 40. Two consequences flow from that analysis. The first is that, leaving aside those cases where the claimant has no genuine intention to seek a remedy against the anchor defendant, the fact that article 4 fetters and paralyses the English forum conveniens jurisprudence in this way in a necessary or proper party case cannot itself be said to be an abuse of EU law, in a context where those difficulties were expressly recognised by the Court of Justice when providing that forum conveniens arguments could not be used by way of derogation from what is now article 4. The second is that to allow those very real concerns to serve as the basis for an assertion of abuse of EU law would be to erect a forum conveniens argument as the basis for a derogation from article 4, which is the very thing that the Court of Justice held in Owusu v Jackson to be impermissible. In my view, if there is a remedy for this undoubted problem, it lies in an appropriate adjustment of the English forum conveniens jurisprudence, not so as to permit the English court to stay the proceedings against the anchor defendant, if genuinely pursued for a real remedy, but rather to temper the rigour of the need to avoid irreconcilable judgments which has, thus far, served to disable the English court from concluding that any jurisdiction other than its own is the forum conveniens or proper place for the litigation of the claim against the foreign defendant. As will appear, I consider that there is a solution to this difficulty along those lines, where the anchor defendant is prepared to submit to the jurisdiction of the domicile of the foreign defendant in a case where, as here, the foreign jurisdiction would plainly be the proper place, leaving aside the risk of irreconcilable judgments.”
“70 In cases where the court has found that, in practice, the claimants will in any event continue against the anchor defendant in England, the avoidance of irreconcilable judgments has frequently been found to be decisive in favour of England as the proper place, even in cases where all the other connecting factors appeared to favour a foreign jurisdiction: see e g OJSC VTB Bank v Parline Ltd[2013] EWHC 3538 (Comm) at [16], per Leggatt J. 71 That is a fair description of the judge’s reasoning in the present case. Having found that, looking at the matter as between the claimants and KCM, all the connecting factors pointed towards Zambia, the judge concluded that, factoring in the closely related claim against Vedanta, which he found as a matter of fact that the claimants were likely to pursue in England in any event, the risk of irreconcilable judgments arising from separate proceedings in different jurisdictions against each defendant was decisive in identifying England as the proper place: see paras 160-168. He said that: “The alternative—two trials on opposite sides of the world on precisely the same facts and events—is unthinkable.” … 75 I have however been much more troubled by the absence of any particular focus by the judge upon the fact that, in this case, the anchor defendant, Vedanta, had by the time of the hearing offered to submit to the jurisdiction of the Zambian courts, so that the whole case could be tried there. This did not, of course, prevent the claimants from continuing against Vedanta in England, nor could it give rise to any basis for displacing article 4 as conferring a right to do so upon the claimants. But it does lead to this consequence, namely that the reason why the parallel pursuit of a claim in England against Vedanta and in Zambia against KCM would give rise to a risk of irreconcilable judgments is because the claimants have chosen to exercise that right to continue against Vedanta in England, rather than because Zambia is not an available forum for the pursuit of the claim against both defendants. In this case it is the claimants rather than the defendants who claim that the risk of irreconcilable judgments would be prejudicial to them. Why (it may be asked) should that risk be a decisive factor in the identification of the proper place, when it is a factor which the claimants, having a choice, have brought upon themselves? … 79 After anxious consideration, I have come to the conclusion that Leggatt J’s analysis of this point [in OJSC VTB Bank v Parline], followed by the judge, is wrong. At the heart of it lies the proposition that, because a claimant has a right to sue the anchor defendant in England, there is “no reason why the claimant should be expected or required to relinquish that right in order to avoid duplication of proceedings”
“(a) At stage one, the court's task is to analyse whether the foreign forum is an available forum that is clearly or distinctly more appropriate for any trial of the dispute (i.e. the 'natural' forum). This typically requires analysis of the competing connecting factors as between England and the foreign forum. The burden of persuasion is on the applicant. (b) If, following the first stage, it is established that the foreign forum is the natural forum, then the court will grant a stay subject to the second stage. At this second stage, the claimant may seek to establish that "there are circumstances by reason of which justice requires that a stay should nevertheless not be granted. In this enquiry, the court will consider all the circumstances of the case, including circumstances which go beyond those taken into account when considering connecting factors with other jurisdictions. One such factor can be the fact, if established objectively by cogent evidence, that the plaintiff will not obtain justice in the foreign jurisdiction". The claimant bears the burden on stage two.”
“… [I]f a clearly more appropriate forum overseas has been identified, generally speaking the plaintiff will have to take that forum as he finds it, even if it is in certain respects less advantageous to him than the English forum. He may, for example, have to accept lower damages, or do without the more generous English system of discovery. The same must apply to the system of court procedure, including the rules of evidence, applicable in the foreign forum. This may display many features which distinguish it from ours, and which English lawyers might think render it less advantageous to the plaintiff…. But that is not of itself enough to refuse a stay. Only if the plaintiff can establish that substantial justice cannot be done in the appropriate forum, will the court refuse to grant a stay…”
“As to the meaning of ‘available’ as well as ‘appropriate’ forum … I would hold that the judge was correct to define the test as ‘available in practice to this plaintiff to have his dispute resolved’”
“… the line which divides the two limbs of Spiliada from each other is neither completely impermeable nor drawn in such a way that there are no factors which do not appear on both sides of it: from time to time a court will locate under one limb of Spiliada material which, arguably at least, might more comfortably belong to the other. But when it is recalled that the overall test is one which asks what the interests of justice require, and when it is to be remembered that the analysis in Spiliada is designed to manage, rather than constrain, that test, it will rarely be a matter of legitimate complaint that this has happened.”