Mining company in multi-billion pound dam collapse case loses appeal on ‘unfounded’ jurisdiction argument

Appeal judges have dismissed an attempt by one of two mining giants involved in the largest group litigation in British history to escape potential liability in the upcoming trial

Refusing Brazilian iron ore mining company Vale permission to appeal a jurisdiction ruling, Lord Justice Coulson and Lady Justice Elisabeth Laing said the application had no real prospect of success.

The Fundão dam, in Minas Gerais, Brazil, collapsed in 2015 killing 19 people and releasing millions of cubic metres of toxic waste. Claimants in the group action being brought in London are seeking compensation from the dam’s operator Samarco Mineração, a joint venture between BHP and Vale. The first stage trial is due to be heard next year.

BHP and Vale deny any liability.

The judgment in Vale S.A v BHP said an estimated figure for remediation costs and compensation was £25bn. Group claim specialist Pogust Goodhead, representing the claimants, says it is seeking £36bn.

Ruling on the jurisdiction appeal, Coulson said Vale had sought to rely on the existence of a jurisdiction application to avoid substantial participation in the ongoing proceedings. ’I do not accept that,’ he said.  ‘It would mean that a defendant could always drive this sort of complex multi-party litigation into the ditch by taking a threshold point and sticking to it, avoiding any engagement with the case management process until all appeal rights had been exhausted.

‘That is not how case management in the Business and Property Courts is designed to work.’

He added that though parties in Vale’s position are ‘entitled to take whatever threshold points they consider appropriate’, they must also ‘plan for the possibility that their threshold position will fail’. He said: ‘It is therefore incumbent upon them to provide some level of cooperation with the other parties and the court pending the final resolution of the relevant application.’

Tom Goodhead, global managing partner at Pogust Goodhead, said: ‘We have recently had the eighth anniversary of the disaster and the victims we represent believe that BHP and Vale’s actions are an affront to justice. It is time for these companies to do the right thing and provide full and fair justice to the victims.’

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