Mining giant BHP has described class action firm Pogust Goodhead as 'unreasonable' in the latest court clash connected with the mammoth Fundão dam litigation. 

BHP yesterday urged the High Court to restrain Pogust Goodhead from continuing to pursue an application in the US for documents and deposition testimony in relation to a witness for so-far unissued English proceedings.

The day-long application before Mr Justice Waksman in the Rolls Building is connected to the ongoing English litigation of the 2015 Brazilian Fundão dam collapse, in which Pogust Goodhead acts for claimants seeking £1.3bn from BHP in respect of its alleged liability for the collapse. BHP denies all allegations against it.

Pogust Goodhead applied for an order from the United States District Court in Arkansas enabling it to obtain documentary evidence from a former chief executive of the Renova Foundation, which is handling Brazilian reparations for the dam collapse, to use in potential future English proceedings.

The Arkansas court issued an ex-parte decision and the US proceedings have been stayed. Pogust Goodhead argues that the decision is effectively an order. 

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BHP argues the firm made the so-called 1782 application – an order from a federal court in the US enabling the applicant to obtain evidence from a US resident in foreign proceedings – without informing the company. 

In written submissions, it claimed the ‘primary effect’ of such an application would be to expose the witness, André Freitas’, to 'oppressive double cross-examination' and BHP to the risk that it would be unable to procure his attendance for a second time at any future English trial.

For BHP, Andrew Scott KC said: ‘The 1782 [order] is being pursued pre-action. When it was made on ex-parte basis, no letter before action had even been sent. It is an extraordinarily early stage. 

‘PG told the Arkansas judge De Freitas was an important witness. PG also told the Arkansas judge at the ex-parte stage that they will almost certainly not be able to obtain Mr De Freitas testimony without the US court’s help. What they did not tell the Arkansas judge is they already had multiple witness statements from Mr De Freitas dealing with his role at Renova and his actions.’

Scott added: ‘It is oppressive for any witness to have to endure this sort of star chamber interrogation.’

For Pogust Goodhead, Oliver Caplin KC told the court that BHP was ‘running two horses, one in Arkansas on time and one belatedly here’ adding that BHP was intervening 'entirely voluntarily' in the US application He added: ‘[BHP] did not have to intervene, it was between Mr De Freitas and PG. It is part of their litigation strategy.'

He told the court BHP’s application was akin to ‘somebody having two bites of the cherry’ and was ‘not an appropriate use of this court’s anti-suit injunction’.

Mr Justice Waksman reserved his judgment.