Vale SA v BHP Group (UK) Ltd & Anor

On an application for permission to appeal, a challenge to a first-instance judge’s multi-factor assessment of the appropriate forum faces a high threshold. The appellate court asks whether there is a real prospect of showing a significant error of principle or that the evaluation was plainly outside the generous ambit of reasonable decision-making. The court must assess the case as a whole, including the interests of all parties and the ends of justice. Avoiding irreconcilable judgments may be decisive, even where other connecting factors favour a foreign forum. A party advancing a threshold jurisdiction challenge must nevertheless plan for its failure and cooperate with case management pending final resolution. The precise form of contribution or reimbursement relief does not defeat a serious issue to be tried where the underlying dispute remains substantive.

Following the Fundão Dam collapse in Brazil, approximately 732,000 claimants brought Brazilian-law claims against BHP in England. BHP sought to join Vale as a Part 20 defendant. Vale challenged the jurisdiction of the English court, arguing that there was no serious issue to be tried and that Brazil was the appropriate forum. Mrs Justice O’Farrell rejected those applications in a judgment dated 7 August 2023, cited in the judgment as [2023] EWHC 2630 (TCC). Vale sought permission to appeal on grounds concerning the serious issue to be tried, the application of the Spiliada principles, readiness for the threshold liability trial, and its continuing participation in case preparation. The central issues were whether any proposed appeal had a real prospect of success and whether the judge had made an appealable error in evaluating the forum and case-management questions.

1. Permission to appeal refused. Vale’s proposed appeal had no real prospect of success. Coulson LJ gave the judgment, with Lady Justice Elisabeth Laing agreeing.
2. On the serious-issue question, the form of BHP’s proposed contribution or reimbursement relief was immaterial. Even if only declaratory relief were available before payment to claimants, the substantive dispute remained a serious issue to be tried.
3. The judge correctly stated the Spiliada principles. The appropriate forum is assessed by asking where the case as a whole, including the interests of all parties, can most suitably be tried for the ends of justice. The appellate court upheld the judge’s consideration of the English proceedings, the Brazilian proceedings, the substantial overlap, and the risk of inconsistent or irreconcilable decisions.
4. The assessment was evaluative. Permission would not be appropriate merely because the appellate court might have weighed connecting factors differently. Intervention requires a significant error of principle or a conclusion plainly outside the generous ambit of reasonable decision-makers. Altimo was not directly analogous: it concerned a different issue, including whether there would be any trial elsewhere. The warning against bringing foreign defendants to England as a matter of course did not assist Vale because the judge had exercised caution and evaluated the particular case.
5. The judge was entitled to conclude that Vale could participate in the threshold liability trial fixed for autumn 2024. The relevant case-management decisions were not appealable in the circumstances, and later evidence about alleged timetabling difficulties could not undermine the earlier orders.
6. Coulson LJ further observed that a party pursuing a threshold jurisdiction challenge must plan for the possibility that it will fail and provide an appropriate level of cooperation with the court and other parties pending final resolution. It cannot use the existence of the challenge to avoid participation in case management.
7. Ground 3 fell away once permission was refused on the jurisdiction and readiness grounds. The application for permission to appeal was refused.

• Court of Appeal (Civil Division): On 24 November 2023, permission to appeal was refused because the proposed grounds had no real prospect of success.
• High Court of Justice, Technology and Construction Court: Mrs Justice O’Farrell refused Vale’s jurisdiction applications in the judgment dated 7 August 2023, cited in the judgment as [2023] EWHC 2630 (TCC). The cover sheet also identifies [2023] EWHC 2030 (TCC) and [2023] EWHC 2607 (TCC) in connection with the appeal.