Município De Mariana v BHP Group (Uk) Limited & Anor.

In very large group litigation, the court may impose bespoke case-management directions where ordinary group litigation procedures do not adequately identify the parties and manage the claims. A single, continuously maintained group register may be required, with clear entry requirements and a cut-off date.

Where threshold liability issues are sufficiently clear, the court may fix a first-stage trial before pleadings and the claimant register are finalised. The trial scope and timetable can remain subject to refinement at a subsequent case management conference. The court should balance procedural completeness against the need to prevent further delay and secure proportionate progress.

The claims arose from the collapse of the Fundão Dam in Brazil and were brought by more than 200,000 Brazilian claimants against BHP Group (UK) Limited and BHP Group Limited, with Vale S.A. joined as a third party.

Following successful appellate proceedings restoring the claims to England, the matter came before the Technology and Construction Court for an initial directions hearing. The court considered the appropriate mechanism for managing the claimant cohort, the service of outstanding individual particulars, and whether to fix a first-stage trial concerning threshold liability issues before the proposed case management conference.

1. Group register. The scale and fact-sensitive nature of the litigation required careful case management. Although a formal group litigation order was not sought, group litigation directions were appropriate. A single Master Schedule spreadsheet was ordered to operate as the group register, to be prepared, served and maintained by the claimants.
2. The Master Schedule had to identify the claimants and their relevant characteristics. Entry required, among other matters, that the claimant be named in an issued and served claim form, that the issue fee had been paid by 17 February 2023, and that the claimant relied on the amended particulars. Further claimants could not be added after that date without permission.
3. Outstanding additional particulars for existing claimants had to be served by 17 February 2023. Claimants without particulars by that date were to be struck through on the relevant records, with applications to discontinue required at the subsequent case management conference unless an earlier consent order was made.
4. First-stage trial. It was appropriate to fix a trial date for threshold liability issues immediately. Such issues were a logical starting point because findings for the defendants could end all or part of the litigation, while findings for the claimants would enable the parties to identify appropriate test cases on causation and quantum. The pleaded issues were sufficiently clear to justify reserving court time, despite the fact that pleadings and the claimant register were not yet finalised.
5. The proposed list of issues required refinement, including consideration of causation, jurisdiction, evidence and the position of Vale. The first-stage trial was fixed for 9 April 2024, with one week for reading and an estimated eight-week hearing, subject to review at the March 2023 case management conference.
6. Further directions were made for amended pleadings and for the parties to agree, or identify disputes concerning, the threshold liability issues.

• Court of Appeal: The defendants’ strike-out and stay applications were dismissed in [2022] EWCA Civ 951.
• High Court, Technology and Construction Court: Turner J had previously granted the defendants’ applications in [2020] EWHC 2930 (TCC). The Court of Appeal reversed that outcome. The present judgment concerned subsequent case management and directions.