'Lawfare': Pogust Goodhead attacks Brazil's 'abusive clauses' action

A court action filed by Brazilian authorities against high-profile class action specialist Pogust Goodhead is ‘another chapter in a continued campaign of lawfare’, the firm has claimed. 

The Brazilian Federal Public Ministry (public prosecutor's office), along with a number of public defenders, last week filed a civil public action against the firm and its Brazilian partners Felipe Hotta Advocacia over the collective litigation brought in London over the 2015 Mariana dam disaster in southeastern Brazil. The claim before the federal regional tribunal argues that the contract between the firm and the claimants contains ‘abusive clauses’. The claim also seeks to void clauses in the group claim and says the case should be heard in the Brazilian courts under Brazilian jurisdiction. It also seeks £5.94m (R$45.5m) in compensation.

The Portuguese-language document filed to the court adds that it seeks recognition of the firm's 'violation of the good faith objective' as 'the contract's clauses were written in a vague manner, impeding information access and placing disproportionate and excessive obligations on those affected by the disaster'. It states that the public prosecutor and others seek all versions of contracts used by Pogust Goodhead since the firm began working on the Mariana dam case.

The firm dismissed the action as ‘without merit’.

A Pogust Goodhead spokesperson told the Gazette: ‘This represents an attempt by those who have brought it to force claimants in the Mariana dam litigation in England to accept a settlement in Brazil despite the English court conclusively having asserted their jurisdiction three years ago.

‘It marks another chapter in a continued campaign of lawfare against the victims of the Mariana dam collapse. This strategy, as in previous episodes, aims to undermine the right, already recognised by the English court, of those affected to seek full compensation and to pressure them into accepting the terms of a settlement which doesn’t reflect or acknowledge the damage they have suffered.’

The hearing in the English courts against mining company BHP, formerly listed on the London Stock Exchange, finished in March with Mrs Justice O’Farrell reserving judgment.

The second phase of the trial is scheduled for October 2026 and will deal with any damages.

Pogust Goodhead said the terms in its retainers are ‘standard terms in any conditional fee agreement’ and the retainers ‘are subject to English law and have been in force since 2018’. It added: ‘We are confident in the validity, operability and fairness of our retainers and will continue to work collaboratively with the relevant Brazilian authorities to resolve the matters at hand.’