Mining giant BHP has lost its bid to appeal a High Court ruling that could hold it responsible for a deadly dam collapse in Brazil. This decision paves the way for a landmark trial in London, set to commence in October 2024.
Hundreds of thousands of Brazilians have brought legal action against BHP Group after the Fundao dam’s collapse in November 2015.
This disaster, in Minas Gerais state, south-eastern Brazil, killed 19 and sent over 40 million cubic metres of toxic waste into the Doce River, becoming Brazil’s worst environmental catastrophe.
Lawyers representing individuals, businesses, municipal governments, indigenous groups, and faith-based organisations claim BHP is liable for compensation for losses from the collapse.
The dam was owned and operated by Samarco, a joint venture between Brazilian iron ore miner Vale and BHP’s Brazilian subsidiary.
In a judgment last November, Mrs Justice O’Farrell found the risk of the dam’s collapse was "foreseeable" and that BHP could be held liable under Brazilian law.
At a hearing in March, BHP made a Court of Appeal bid to bring a challenge against the High Court judge’s decision on liability.
But in a judgment on Wednesday, two appeal judges refused the bid to bring an appeal.
Lord Justice Fraser said in a 32-page ruling: “In none of the grounds which BHP seeks to advance could it possibly be said that the decision under appeal is one that no reasonable judge could have reached, or one that was not properly open to her.
“Further, there are no free-standing points of principle that the judge got even arguably wrong.”
The judge later said that an argument that the High Court did not properly address BHP’s points over whether the cases were brought too late was “baseless”.
Lord Justice Fraser, sitting with Lord Justice Lewison, continued: “There was no procedural irregularity, serious or otherwise, and the claims that the judge ‘failed to engage’ on these three areas of the Brazilian law of limitation are groundless.”
BHP had previously been given the green light to appeal about the level of interest to be paid on legal costs, with the claimants’ costs as of January exceeding £213 million.
Lord Justice Fraser ruled that this challenge should be expedited and may now take place in October.
A further High Court trial is expected in 2027 to deal with outstanding issues including the quantum of any damages.
Jonathan Wheeler, lead partner for the Mariana litigation at Pogust Goodhead, described Wednesday’s judgment as “an emphatic and unambiguous outcome”.
He continued: “BHP remains liable for the worst environmental disaster in Brazil’s history, and it will not be given another bite at the cherry.
“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.”
A spokesperson on behalf of BHP said it had supported Samarco “in ensuring full and fair reparation” and that an approximately 32-billion-dollar agreement in Brazil has achieved compensation for more than 625,000 people and is “the quickest and most efficient solution to compensate those impacted by the Samarco dam failure”.
The spokesperson added: “The claimants’ lawyers have acknowledged that any UK claimant who has received compensation and entered into a full release should have their claim discontinued.
“We believe there are approximately 240,000 individual claimants in the UK group action, approximately 40% of the total, who fall under this, which will significantly reduce the size and value of claims in the UK group action.
“This underscores the importance of the work done over the past 10 years in Brazil.”
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