Brazil judgment 'vindication', says Goodhead as solicitors consider court's findings

Today's High Court judgment which found mining giant BHP to be ‘strictly liable as polluters' for a dam disaster in Brazil has been described as a ‘watershed moment’ for English law.

Tom Goodhead, co-founder and ousted chief executive of class action firm Pogust Goodhead, said the judgment was ‘what we hoped for when we first started legal action seven years ago’. He added: ‘Today’s ruling places legal responsibility on BHP for the Fundão dam collapse – and provides a pathway for compensation in the UK courts, where BHP is headquartered.

‘The judgment is vindication for more than 620,000 people, the municipalities they live in and the indigenous and traditional communities whose customs and practices have been irreversibly damaged by the fault of the mining companies. I pay tribute to the strength and stoicism of the claimants and congratulate the lawyers, both here and in Brazil.

‘The ruling proves that justice - though delayed - is possible, and that accountability can reach across borders when communities refuse to give up.’

In a press conference, Pogust Goodhead partner Tom Ainsworth said: ‘Today is obviously a huge moment for the victims of the collapse of the Fundão dam. The pain and the impact the collapse has had on them and on hundreds of thousands of people is impossible to put into words. It has taken 10 years to finally hold an international mining company responsible for the collapse.’

Pogust Goodhead chief executive Alicia Alina described the judgment as a ‘historic ruling’ which ‘sends a powerful message’. She added: ‘I am immensely proud of the team at Pogust Goodhead and the courage specifically of the Brazilian communities who have fought so tirelessly for this moment.

‘Liability is now established. [The firm’s] focus turns to ensure BHP provides full, fair and prompt compensation. We will continue to stand with the victims and pursue all necessary action. This judgment is a watershed moment for both English law and our Brazilian communities, not only for Brazil but global responsibility everywhere.

‘Today is fundamentally about the claimants, what we have managed to achieve is unprecedented. We are absolutely committed to ensuring what happens in the next stage [and] on putting as much pressure on BHP to do the right moral thing now and compensate our clients to the level that they absolutely deserve.’

Solicitors said the ruling could pave the way for further actions in the English courts. 

Ben Wolfe, partner at Grosvenor Law, said the outcome 'offers a stark reminder that parent companies and investors can be found liable in England for events and environmental failures that occur on overseas projects - even where assets are operated through joint ventures and local subsidiaries. The court’s findings on foreseeability and duties of oversight significantly expand the potential exposure of large multinational groups. For infrastructure investors, the message is clear - governance, risk management and safety are not just operational issues, they are legal liabilities that can reach the top of the corporate chain and can have an enormous impact on the balance sheet.’

Tom Cummins, senior counsel at Ashurst, said the litigation was ‘seen by some as a test of the English courts’ capacity to adjudicate complex mass tort claims…particularly as the claims were initially struck out on the basis of “irredeemable unmanageability”, a decision overturned on appeal’.

He added: ‘Although the issues in dispute are governed by Brazilian law, the judgment provides valuable pointers on how the English court will assess questions of corporate control and responsibility for overseas harm. These have been live issues in a number of cases brought against parent companies in the English courts.

‘Today’s judgment is likely to encourage other claimants, who will note the English court’s ability to manage and determine complicated claims under laws other than its own. They will likely also be encouraged by the procedural mechanisms under English law which enable disclosure of internal corporate documents to support allegations of corporate control.

‘It should be remembered though that this judgment deals only with issues of liability; issues of quantum and orders requiring payment of damages remain some way off. Pursuing cases of this nature is an expensive, and onerous, undertaking, with no guarantees as to the ultimate outcome.’