Mining giant BHP argues judge failed to engage with its submissions in dam collapse case

The judge who found global mining giant BHP to be strictly liable for damage caused by a 2015 dam collapse in Brazil made ‘critical errors in her findings’, the Court of Appeal has heard. 

BHP is seeking permission to appeal Mrs Justice O’Farrell’s liability judgment handed down in November following a five month hearing in a group claim. The 222-page judgment found the risk of collapse of the Fundão Dam was ’foreseeable’.

Shaheed Fatima KC, for BHP, told the Court of Appeal: ‘On…polluter definition there were four key issues in relation to the legal test for polluter liability. BHP have a real prospect of success in demonstrating the judge’s findings on each of those issues is contrary to the agreed expert evidence and the material supporting that evidence or, alternatively, that the judge failed to engage with BHP’s submissions.’

In written submissions, BHP said it did not appeal the judge’s formulation of the legal test in relation to fault-based liability but her factual findings which 'are all rendered unsafe as a result of the judge’s failure to engage with BHP’s case'.

Faitma said the judgment dealt with an extensive audit by BHP in ‘two sentences’. She added: ‘There is no reasoning or attempt to identify where the specific allegations BHP had complained about were pleaded and no reasoning or attempt to identify where the judge considered the material allegations which she then went on to consider.’

She added: ‘Whatever the judge found, none of us know because it is not in the judgment. We have conclusions often in a sentence or two, but we do not have reasoning.’

The court heard that BHP seeks a retrial on the transcripts. In written submissions, BHP said: ‘there is no reason why further oral evidence should be required, in circumstances where (a) there was no problem with the conduct of the trial, and (b) there is a complete transcript of the evidence adduced’.

For the claimants, Alain Choo-Choy KC told the court that BHP had ‘no realistically arguable case contending the judge has ignored any relevant evidence or failed to engage sufficiently with key arguments’.

In written submissions the claimants said there was no compelling reason to grant permission to appeal, adding: ‘It is fanciful to suppose that the [Court Appeal] after the 6–7-day appeal hearing suggested by BHP would either reverse the judge’s careful findings or order a retrial of matters which BHP complains were insufficiently analysed. BHP falls a long way short of demonstrating a real prospect of success or a fundamental failure of justice.’

Lord Justice Lewison and Lord Justice Fraser reserved judgment.