Monday 4 – Friday 8 April 2022
The Claimants appeal from the order made by Turner J dated 26/1/21 striking out the claims as an abuse of process and alternatively (a) staying the claims against BHP plc under Article 34 of the Recast Brussels Regulation (b) staying claims against BHP Ltd on forum non conveniens grounds and (c) staying claims against both Defendants on case management grounds.
The Cs are also wishing to appeal the costs order of 29/1/21 ordering Cs to pay the D1 and D7’s costs of the action and to make a payment on account of 8 Million pounds by 15/2/21.
This action was brought by over 200,000 Claimants against the English and Australian joint parent companies of the BHP Group: respectively BHP plc and BHP Ltd .
The Cs submit that the case raises fundamental issues of principle in relation to stay applications under Recast Brussels Regulation and at common law and their relationship with abuse of process applications and issues of access to justice.
The action concerns Ds’ liability for the collapse of the Fundao Dam in Brazil in November 2015 causing Brazil’s worst environmental disaster. Liability arises under Brazilian law including on basis that Ds are strictly liable as indirect polluters contributing to and benefiting from the polluting operations.C’s case is that Ds were closely involved in the events leading to the collapse.
The parties agree the Cs had an arguable action against both Ds under Brazilian law. Both Ds were sued as of right in England. The English court exercises mandatory jurisdiction over challenges and strike out and stay applications.
The judge struck out all the claim as an abuse of process on primary basis that ,as there would be risk of irreconcilable judgments in the Brazilian litigation (not involving Ds) and the scale of the claims, the claims would be irredeemably unmanageable and there would be nothing to be gained from litigation in England. He also made the rulings in the alternative set out above.