Mining giant BHP has failed to block the latest move by class action firm Pogust Goodhead in ongoing litigation over the 2015 Fundão dam collapse in Brazil.
The firm is pursuing an application in the US Disctrict Court in Arkansas for documents and deposition testimony from a witness, André Freitas, a former chief of the Renova Foundation which is handling Brazilian reparations for the disaster, in so-far unissued English proceedings.
The Arkansas court stayed proceedings while BHP applied for an anti-suit injunction (ASI) in England. The company argued that Pogust Goodhead’s '1782 application' – an order from a federal court in the US enabling the applicant to obtain evidence for use in foreign proceedings – would be ‘oppressive’.
Mr Justice Waksman today refused to grant the anti-suit injunction, saying any risk of prejudice to BHP was ‘either small or speculative’.
Considering the use of 1782 applications to aid English proceedings in principle, the judgment said it is not oppressive to take advantage of a facility abroad to depose a witness, pre-action, even if this is not a procedure availablehere. ‘Parties are entitled to make use of litigation advantages such as this, if available,’ the judge added.
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The judge found the firm’s 1782 application and its intention to rely upon the subsequent order was ‘not unconscionable whether by being [vexatious and oppressive’ or (if different) an interference with the English court process’. He added: ‘Even if the conduct of [Pogust Goodhead] was unconscionable, I would not, in my discretion, have granted the ASI.’
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