Municípo de Mariana v BHP Group PLC & Anor.

Abuse of process may arise where proceedings are pursued in parallel with closely related foreign group litigation, creating oppressive duplication, a serious risk of inconsistent findings and disproportionate demands on court resources. The court must first decide whether abuse has been clearly established. If it has, the court must then determine the appropriate procedural consequence, including whether striking out or a stay is proportionate. In assessing abuse, the court may consider the practical manageability of the proceedings, the availability of redress elsewhere, the interests of defendants and the court, and the risk of cross-jurisdictional contamination. A claimant’s general freedom to choose defendants is not absolute. Article 34 of the Recast Brussels Regulation also permits a stay where the statutory conditions are satisfied, even if consolidation with the foreign proceedings is impossible.

Approximately 202,600 claimants sought damages against BHP Group Plc and BHP Group Ltd arising from the 2015 Fundão dam disaster in Brazil. The claims were governed by Brazilian law and concerned losses allegedly caused by pollution from the dam collapse.

The defendants sought to terminate or stay the proceedings on four grounds: abuse of process, Article 34 of the Recast Brussels Regulation, forum non conveniens in respect of BHP Group Ltd, and case-management powers. The claimants were also pursuing, or retained rights to pursue, related compensation through Brazilian collective and individual proceedings.

The central issues were whether the English claims were an abuse because of their parallel pursuit with Brazilian proceedings, whether Article 34 required a stay, whether Brazil was the more appropriate forum for the Australian defendant, and whether case management justified a stay.

1. The claims were clearly an abuse of the process of the court. Their parallel pursuit in England and Brazil involved closely related claims, many overlapping claimants and remedies, a substantial risk of inconsistent findings, duplication of evidence and costs, and severe practical difficulties concerning Brazilian law, translation, witnesses and the management of a group exceeding 200,000 claimants. The effect on the court itself was a material consideration.

2. The court applied a broad, merits-based approach. Bad faith was neither necessary nor sufficient. A claimant’s right to choose defendants was not absolute where pursuing the chosen defendants produced no realistic substantive advantage and imposed oppression or a disproportionate burden on the court. The fact that proceedings were being pursued for the first time required careful scrutiny before strike out, but did not prevent a finding of abuse.

3. The court adopted a two-stage approach to abuse. First, abuse had to be clearly proved. Secondly, if abuse was established, the court had to decide whether to strike out, stay, or impose another procedural consequence. In this case, the proceedings were irredeemably unmanageable and a stay would not provide adequate finality or resolve the continuing risk of cross-jurisdictional contamination. Strike out was therefore the only proper consequence.

4. Alternatively, Article 34 of the Recast Brussels Regulation applied to the claim against BHP Group Plc. The English proceedings were related to the pending 155bn CPA. Following Sarrio S.A. v Kuwait Investment Authority [1999] 1 A.C. 32, relatedness and the risk of irreconcilable judgments were to be assessed broadly and with common sense. The risk extended beyond issues capable of creating formal issue estoppels.

5. The word “expedient” in Article 34 was closer to desirable than to practicable or possible. The court therefore followed JSC Commercial Bank Privatbank v Kolomoisky [2019] EWCA Civ 1708, while recognising that the inability to consolidate could weigh heavily against a stay at the discretionary stage. The statutory requirements were satisfied, and a stay would be necessary for the proper administration of justice.

6. Alternatively, Brazil was clearly or distinctly the more appropriate forum for the claims against BHP Group Ltd under Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460. The tort and governing law were Brazilian, most parties and witnesses were in Brazil, and the Brazilian courts had greater familiarity with the dispute. The claimants did not show by cogent evidence that substantial justice could not be obtained in Brazil.

7. The court rejected the contention that delay, procedural differences, lack of equivalent legal aid, or less advantageous remedies in Brazil established that substantial justice could not be done there. Claimants generally had to take the appropriate foreign forum as they found it.

8. The claims against both defendants were struck out as an abuse of process. In the alternative, the court would have imposed the stays and other consequences identified in paragraph 265.

First-instance judgment. The court recorded that an earlier procedural judgment was given in Município de Mariana v BHP Group Plc [2020] EWHC 2471 (TCC). No appeal determination was stated in this judgment.