Permission to appeal liability judgment in Brazil dam collapse case is refused

Permission to appeal a 222-page liability judgment in the group claim over the ‘forseeable’ collapse of the Fundão Dam in Brazil has been refused by the Court of Appeal.

The ongoing litigation in Município de Mariana & Ors v BHP Group (UK) Ltd & Anor is the ‘very definition of a heavy case’, Lord Justice Fraser, with whom Lord Justice Lewison agreed, said. ‘Even by the standards of those cases within the [Technology and Construction Court], this case is somewhat notable in scale’.

Mining giant BHP was seeking permission to appeal Mrs Justice O’Farrell judgment last November finding BHP to be strictly liable as ‘polluters’ for the 2015 disaster. In today’s  judgment, Lord Justice Fraser said: ‘I do not consider it to be reasonably arguable that the trial judge was wrong to hold that BHP are strictly liable as polluters under Article 3(IV) of the Environmental Law.

‘Her findings were not unsupported by evidence; on the contrary, there was ample evidence before her to justify her findings. Nor were these findings irrational. BHP do not come close to crossing the threshold necessary to challenge these findings on appeal. 

‘There is simply no basis for any claim that the trial judge “failed to engage” with BHP’s case on this issue, which is the alternative to the submission that she was wrong. I do not consider that to be a valid submission. She did engage with the case; she did, however, prefer the claimants’ case.’

BHP 'does not come close' to showing either an error of principle or a failure to engage with BHP’s case' the judge said. Rejecting as 'groundless' BHP’s claim that the judge failed to engage on areas of Brazilian law of limitation, the judge added ‘She clearly addressed these issues in her judgment, and indeed these issues are not only in the agreed list of issues but are listed in her judgment.’

‘There was no failure to engage and no serious procedural irregularities. Instead, she applied her findings on foreign law – which are treated as findings of fact in this jurisdiction - to the facts as she found them to be, reached after a very long trial and having heard a considerable number of witnesses, particularly expert witnesses, over a very large number of hearing days.'

The Court of Appeal did order expedition of the appeal in relation to the stage 2 trial, which is listed for next year and will deal with quantum. Making the order the judge described the ‘level of costs overall is very sizeable’. The claimants, who are represented by Pogust Goodhead, have accumulated a gross costs total 'in excess of £213 million’.

Jonathan Wheeler, lead partner for the Mariana litigation at Pogust Goodhead, said: ‘BHP remains liable for the worst environmental disaster in Brazil’s history. Our clients have waited more than a decade for justice. We are focused on securing the compensation that hundreds of thousands of Brazilians have been owed for far too long.’