High Court denies BHP appeal request

The High Court of England and Wales has upheld a pivotal ruling determining that BHP, the mining giant, is liable for its role in Brazil's most devastating environmental disaster, the collapse of the Fundão dam in 2015. Justice O’Farrell noted the significance of the decision, stating that it represents a crucial advancement towards justice for over 620,000 Brazilian claimants affected by the disaster. The Court’s judgement confirmed that BHP is liable under Brazilian law and stated that both claimants and municipalities are entitled to pursue their claims in England.

In a hearing held after the primary judgment, the High Court ruled against BHP’s application for permission to appeal, asserting that their proposed grounds had “no real prospect of success”. Mrs Justice O’Farrell remarked that, “In summary, despite the clear and careful submissions of Ms Fatima KC, leading counsel for the defendants, the appeal has no real prospect of success." She elaborated that the High Court’s findings were based on Brazilian law established as facts, along with corroborating expert and factual evidence.

During the December hearing, claimants represented by Pogust Goodhead argued that BHP's appeal was an attempt to overturn detailed factual findings from an extensive trial. They indicated that appellate courts do not conduct re-trials of factual matters, and labelled BHP’s reasoning as an insubstantial attempt to secure a second chance. Today's High Court ruling reaffirmed the original findings regarding liability while providing BHP a 28-day window to apply for the Court of Appeal.

Jonathan Wheeler, Partner at Pogust Goodhead and lead of the Mariana litigation, expressed his satisfaction with the outcome, declaring, “This is a major step forward. Today’s decision reinforces the strength and robustness of the High Court’s findings and brings hundreds of thousands of claimants a step closer to redress for the immense harm they have suffered.” Wheeler also stressed that BHP's ongoing appeal attempts reveal a concerning tendency to manage the case without acknowledging the humanitarian disaster it entails.

One of the claimants, Mônica dos Santos, who lost her home due to the disaster, characterised today’s ruling as an “important victory”. She voiced her frustration at the delays, saying, "This is an important victory. Ten years have passed since the crime, and more than 80 residents of Bento Rodrigues have died without receiving their new homes." She lamented the plight of the affected residents, stating, “It is unacceptable that, after so much suffering and so many lives interrupted, the company is still trying to delay the process to escape its responsibility.”

In addition to the liability judgment, the High Court ordered BHP to pay 90% of the claimants' Stage 1 Trial costs and to provide a £43 million payment on account. This decision underlines the extensive complexity of the Mariana litigation and the unwavering determination of Pogust Goodhead, who has financed the case on a no-win, no-fee basis for over seven years, ensuring that the claimants have not faced upfront costs. The costs recovery ordered by the Court is separate from any potential damages award and does not influence the compensation the claimants may ultimately receive.