“…Judge not to pursue any reliance on any alleged inability to pay on the part of Samarco. It is an abuse to seek to go behind that election (see Khetani v Kanbi [2006] EWCA Civ 1621 at para. [40]). Secondly, in any event, the fresh evidence is irrelevant. Mr de Freitas has stated that in the event that a Brazilian court finally determines …”
“…fendants submit that the application to adduce the fresh evidence is itself an abuse of process (see for example the comments of Chadwick LJ in Khetani v Kanbi [2006] EWCA Civ 1621 at para. [40]).…”
“…e. In an ordinary civil claim satisfaction of these criteria is a necessary but not a sufficient condition for the reception of fresh evidence: Khetani v Kanbi [2006] EWCA Civ 1621. If these criteria are met, the appeal court has a discretion to exercise. In deciding how to exercise that discretion this court held in Transview Properties …”