A £113.5 million claim for interim costs in the London litigation over Brazil's worst environmental disaster has been cut by more than half by the latest judgment in the record breaking case. 

In Município De Mariana v BHP Group (UK) Ltd & Anor Mrs Justice O’Farrell also refused mining giant BHP’s permission to appeal her liability judgment. BHP had argued that the court ‘failed to engage with critical issues in dispute, carry out a judicial evaluation, and provide any, or any proper, reasons why the defendants’ case was rejected’.

The stage 1 judgment in November found BHP strictly liable as ‘polluters’ in respect of damage caused by the 2015 Fundão Dam collapse. Pogust Goodhead, acting for the claimants, sought to recover £189m costs and a payment on account of 60% – £113.5m. 

Protesters demonstrate against Mariana dam disaster outside London's High Court

Protesters outside the Rolls Building last year

Source: ANDY RAIN/EPA-EFE/Shutterstock 

The judge said the defendants should pay 90% of the claimants’ stage 1 trial costs, subject to a detailed assessment, but that £43m was a 'reasonable sum' to be paid on account. She added: ‘This is a very complex litigation, it has required dedicated work by many lawyers and experts for over [seven] years and there have been significant challenges for the disparate groups of claimants, many of whom live in rural areas of Brazil, in pursuing these claims in this jurisdiction.

‘Notwithstanding those difficulties, the costs are extraordinarily high and the level of detail provided very limited. It is noted that the costs will be subject to a detailed assessment in due course but the paucity of information available to the court at this stage indicates that a very cautious approach should be taken to the broad-brush assessment of the likely level of recovery of these costs for the purpose of determining a payment on account.’

Read more

Some categories of costs such as walk-in and call centre costs, the Brazilian legal teams undertaking sign-up work and legal advice were not considered recoverable as part of the stage 1 trial but would, ‘if recoverable at all’, form part of the overall proceedings’ costs, the judge said. 

Considering BHP’s application for permission to appeal, the judge said the defendants’ criticism ‘has no real prospect of success’ and ‘there is no other compelling reason for the appeal to be heard’.

BHP said it intends to appeal.