Municipio De Mariana & Ors v BHP Group PLC & Anor (Rev 1)

Permission to appeal may properly be refused with fuller reasons where the litigation is unusually complex, but grounds of appeal must remain concise and identify the alleged error rather than argue the appeal. An appellate court should not substitute its own evaluation for a first-instance assessment unless the recognised limits for appellate intervention are exceeded. Proceedings may constitute an abuse of process where their continuation would be irredeemably unmanageable, including because of their interaction with parallel foreign proceedings. Costs ordinarily follow the overall result. A party’s pragmatic decision to abandon alternative arguments does not ordinarily justify a costs penalty where the central case succeeds.

Approximately 202,600 claims arising from the collapse of the Fundão dam in Brazil had been struck out as an abuse of process in Município De Mariana v BHP Group Plc [2020] EWHC 2930 (TCC). The claimants sought permission to appeal, challenging the abuse-of-process analysis and, alternatively, findings concerning Article 34, forum non conveniens and case management. Ancillary issues concerned the defendants’ costs, an interim payment on account and funding disclosure.

The central questions were whether the proposed grounds disclosed a real prospect of success or another compelling reason for an appeal, and what costs consequences followed from the disposal of the litigation.

1. Permission to appeal refused. The draft grounds, extending to 70 paragraphs over 39 pages and containing argument rather than concise grounds, failed to comply with para 5 of Practice Direction 52C. The court nevertheless gave fuller reasons because of the complexity and exceptional scale of the litigation.
2. The central conclusion in the substantive judgment was that continuation of the claims would be “irredeemably unmanageable”. That was an evaluative judgment reached after extensive evidence and argument. No error of primary fact was identified, and the proposed appeal largely sought a re-evaluation of undisputed facts and secondary inferences. Appellate intervention was therefore unjustified.
3. The judge reaffirmed that the court could take account of parallel proceedings, the risk of irreconcilable judgments, cross-contamination between jurisdictions and the burden imposed on the English court when determining abuse of process. The relevant considerations were not required to be placed in hermetically sealed compartments. The conclusion on abuse was independently sufficient, so the Article 34, forum non conveniens and residual case-management grounds had no practical significance.
4. In any event, the judge maintained his conclusions that the broader approach to irreconcilable judgments was correct, that the Article 34 conditions and discretionary requirements were satisfied, and that the flexible second stage of the Spiliada test permitted consideration of all circumstances relevant to justice.
5. The defendants were the successful parties. Under CPR 44.2, the general rule applied and no sufficient reason existed to depart from it. The defendants were awarded their costs, subject to detailed assessment. A pragmatic narrowing of the Article 34 case and work on an issue later found academic did not justify reducing the award.
6. An interim payment of £8,000,000 was ordered by 4:00 pm on 12 February 2021, representing a rounded-down 50 per cent of the defendants’ claimed costs. Funding disclosure issues were reserved for further consideration after that date.

• High Court (Technology and Construction Court): the substantive claims were struck out as an abuse of process in [2020] EWHC 2930 (TCC).
• High Court (Technology and Construction Court): permission to appeal was refused in the present judgment, with ancillary costs and funding issues determined.