Município De Mariana & Ors v BHP Group (UK) Limited (formerly BHP Group PLC) & Anor
[2024] EWHC 23 (TCC)
Vale SA v BHP Group (UK) Ltd & Anor
24 November 2023
[2023] EWCA Civ 1388
Court of Appeal
A Brazilian dam collapsed, causing massive damage. Thousands of people sued BHP in the UK. BHP wants to sue Vale (a co-owner of the dam) in the same UK case. Vale argued the UK court shouldn't hear the case against them, but the Court of Appeal disagreed, saying the UK is the best place to handle the situation because it already has most of the claims, and holding separate trials in Brazil could lead to different results.
Key Facts
- •On 5 November 2015, the Fundão Dam in Brazil collapsed, causing widespread damage and estimated £25 billion in remediation and compensation costs.
- •Samarco, a joint venture owned by Vale (appellant) and BHP Brasil (owned by the respondents, BHP), operated the dam.
- •Around 732,000 claimants issued proceedings against BHP in the UK under Brazilian law.
- •BHP sought to join Vale as a Part 20 defendant.
- •Vale challenged the English court's jurisdiction, arguing no serious issue to be tried and that England was not the appropriate forum.
- •O'Farrell J refused Vale's applications; Vale appealed.
Legal Principles
Appropriate forum for a Part 20 claim is determined by applying the principles in *Spiliada Maritime Corp v Cansulex*, *AK Investment CJSC v Kyrgyz Mobil Tel Limited*, and *Vedanta Resources Plc v Lungowe*. The court seeks a single jurisdiction where claims against all defendants can be most suitably tried.
*Spiliada*, *Altimo*, *Lungowe*
Appeal court should not interfere with trial judge's factual conclusions unless plainly wrong; the judge's weighing of evidence is largely unreviewable.
*Volpi v Volpi*, *Samsung Electronics Co Ltd & Ors v LG Display Co Ltd*
In determining the appropriate forum, the court must consider the natural forum for the claim against the foreign defendant, considering the interests of all parties and the ends of justice.
*Lungowe*
Caution must be exercised in bringing foreign defendants into the UK jurisdiction. The avoidance of irreconcilable judgments can be decisive in favour of England as the proper forum.
*Altimo*, *Lungowe*
Outcomes
Permission to appeal refused.
Vale failed to demonstrate that the judge was "plainly wrong" in applying the *Spiliada* principles. The judge correctly considered all relevant factors, including the substantial proceedings already underway in the UK involving a large number of claimants, and the risk of inconsistent judgments if the claims against Vale were heard separately in Brazil. The judge’s case management decisions were also appropriate.
Ground 1 (no serious issue to be tried) dismissed.
Even if BHP's claim is framed as a declaration rather than a contribution (a concept not recognized in Brazilian law), a serious issue remains to be tried.
Ground 2A (failure to correctly apply *Spiliada* principles) dismissed.
Vale's arguments were based on misinterpretations of the judge's reasoning and failed to demonstrate a significant error of principle or evaluation.
Ground 2B (readiness for trial) dismissed.
Vale's arguments about readiness for trial were untimely and ignored the judge's prior case management decisions. The court will not interfere with the judge’s case management.
Ground 3 (Vale's continued participation) dismissed.
This ground was dependent on the success of Ground 2A and 2B, which failed. Vale's attempt to avoid substantial participation in proceedings pending appeal was rejected.
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