BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | ||
England and Wales High Court (Commercial Court) Decisions |
||
You are here: BAILII >> Databases >> England and Wales High Court (Commercial Court) Decisions >> Viegas & Ors v Cutrale & Anor [2024] EWHC 2609 (Comm) (22 October 2024) URL: http://www.bailii.org/ew/cases/EWHC/Comm/2024/2609.html Cite as: [2024] EWHC 2609 (Comm) |
[New search] [Printable PDF version] [Help]
KING'S BENCH DIVISION
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
COMMERCIAL COURT
Fetter Lane, London, EC4A 1NL |
||
B e f o r e :
SITTING AS A JUDGE OF THE HIGH COURT
____________________
FLAVIO DE CARVALHO PINTO VIEGAS AND OTHERS |
Claimants |
|
- and - |
||
(1) ROSANA FALCIONI CUTRALE AS THE REPRESENTATIVE OF MR JOSÉ LUIS CUTRALE (deceased) (2) MR JOSÉ LUIS CUTRALE (Jnr) |
Defendants |
____________________
Brian Kennelly KC, Paul Luckhurst, Sean Butler And Tom Watret (instructed by Linklaters LLP) for the Defendants
Hearing date: 2 October 2024
____________________
Crown Copyright ©
HH Judge Pelling KC:
Introduction
Background
"a. Whether the cartel existed, what the nature of the collusion between the participants was, and how this was carried into e?ect;
b. The duration of the cartel (including whether it extended beyond the Admitted Cartel Period);
c. Whether the Defendants, Sucocítrico Cutrale Ltda (the company of which the Defendants were o?cers and shareholders), and others participated in the cartel and if so for how long;
d. The scope, nature and e?ect of (i) the Cease and Desist Agreements entered into by the Defendants, and (ii) the CADE Final Decision, relative to the conduct investigated by CADE (for example, whether they conclusively established or otherwise evidence actionable conduct by the Defendants at least during the Admitted Cartel Period);
e. The outcome and relevance of other o?cial investigations into the Defendants' conduct, including (i) criminal proceedings brought against the First Defendant by the Prosecutor's O?ce of the State of São Paulo, and (ii) an inquiry by the São Paulo Parliamentary Committee of Investigation into the Citriculture Cartel;
f. Whether the Claimants can rely, for the purposes of the present proceedings, on various provisions of Brazilian law which establish the legal e?ect of confessions, or which are relevant to the liability of o?cers and shareholders of limited liability companies for harms perpetrated by those companies."
It is common ground that "… limitation is one of the issues that arises as between the parties and a key point in dispute." – see paragraph 18 of Mr Evans' 24th witness statement. The defendants estimate (and I don't understand the claimants to disagree) that if the issues identified by Mr Evans in paragraph 18 of his statement are to be resolved together with the issue of limitation in one trial (as the claimants contend should happen), that trial will last a minimum of 12 weeks. Such a trial will involve a massive disclosure exercise, with most documents being in Portuguese and thus requiring translation, evidence from a significant number of witnesses of fact, many and perhaps most of whom live and work outside England and Wales and for many of whom Portuguese will be their only language, thus requiring extensive interpretation expert support both in preparing the statements of such witnesses and at trial. In addition substantial expert economic evidence will probably be required. Such a trial will be a massive undertaking as both parties accept, that will expose the parties to costs of many millions of pounds as well as consuming a significant amount of public resource.
Applicable Principles
"…that which appeared to be capable of discrete determination is often found later to be inextricably linked to issues whether of fact or law or both which cannot safely and satisfactorily be summarily determined…"; and "… where the issues are of both novelty and importance, the prospect of appeals is real; and a bifurcated process may result…" "
so that in consequence a direction for trial of a preliminary issue may become a source of delay and expense – see Wentworth Sons v Lomas [2017] EWHC 3158 (Ch); [2018] 2 BCLC 696 per Hildyard J at [29] – [31], as Hildyard J stated at [34]:
"… the caution required should not be such as to oust the use and utility of preliminary issues where, on the best judgment that can be made at the time, their direction appears appropriate. Especially, as it seems to me, where there are limitation or other time bars potentially in issue, the purposes of the time bar may only really be fulfilled by early determination of its application; and/or where there are points of law which it does appear could, if determined, determine the case, with considerable saving of time and cost, the machinery available is salutary."
This tension has led to the formulation of 10 non-exclusive tests generally applied when deciding whether to direct trial of preliminary issues, which were summarised by Hildyard J in Steele at [32] as being:
"(1) Would the determination of the preliminary issue dispose of the case or at least one aspect of it?
(2) Would the determination of the preliminary issue significantly cut down the cost and time involved in pre-trial preparation or in connection with the trial itself?
(3) Where, as here, the preliminary issue was one of law the court should ask itself how much effort would be involved in identifying the relevant facts.
(4) If the preliminary issue was one of law to what extent was it to be determined on agreed facts?
(5) Where the facts were not agreed the court should ask itself to what extent that impinged on the value of a preliminary issue.
(6) Would determination of the preliminary issue unreasonably fetter the parties or the court in achieving a just result?
(7) Was there a risk of the determination of the preliminary issue increasing costs and/or delaying the trial?
(8) The court should ask itself to what extent the determination of the preliminary issue may turn out to be irrelevant.
(9) Was there a risk that the determination of the preliminary issue could lead to an application for the pleadings to be amended so as to avoid the consequences of the determination?
(10) Taking into account the previous points, was it just to order a preliminary issue?"
In most cases only some of these tests will be applicable and in some cases there will be special considerations not within the scope of these tests that will be material or even decisive.
The Nature of the Limitation Issue
Application of the Steele Criteria to these Claims