Município de Mariana & Ors v BHP Group (UK) Limited & Anor

At a first case management conference in complex group litigation, the court should define a first-stage trial so that it determines coherent and material threshold liability issues. Where pleaded liability depends on causation, removing causation questions will not avoid their determination and may produce fragmented and inefficient proceedings. Settlement and limitation issues may properly be included where they raise significant legal questions capable of determination by representative samples or agreed hypothetical facts. Case management must balance expedition, fairness, adequate preparation, participation of additional parties and proportionate use of court resources. Expert evidence is restricted to what is reasonably required and should not be permitted until the issues requiring it have been defined.

The claimants, numbering more than 720,000, brought claims against BHP arising from the Fundão Dam disaster in Brazil. Vale was joined as a Part 20 defendant. The court was asked to settle the issues for a first-stage trial, determine whether causation, additional limitation questions and settlement issues should be included, fix the trial timetable, and decide related disclosure, expert evidence and litigation-friend applications.

The parties disagreed principally about whether the first-stage trial could determine liability without causation evidence, whether issues concerning prescription and settlement should be included, and whether the trial should be postponed to accommodate preparation and Vale’s jurisdiction challenge.

1. Scope of trial. The first-stage trial was directed to include the agreed causation issues. Issues 1, 2 and 3 concerned liability for damage caused by the collapse, and the pleaded cases made causation material to strict, fault-based and controlling-shareholder liability. Deleting express causation questions would not remove the need to determine causation and would risk a fragmented trial requiring a further liability hearing.
2. Limitation and settlement. Additional limitation questions concerning later damage, later knowledge, continuing damage and incapacity under the Civil Code were included. They could be tried with the other limitation issues by reference to agreed hypothetical facts, although the court cautioned that findings would be confined to questions of principle. Settlement issues based on representative agreements were also included because they raised significant points of Brazilian law and might dispose of or materially reduce substantial parts of the litigation.
3. Case management and evidence. Applying the overriding objective in Civil Procedure Rules 1998, the court balanced the claimants’ need for expedition, the defendants’ need for adequate preparation and Vale’s position pending its jurisdiction challenge. The April 2024 trial was infeasible. It was postponed to 7 October 2024, with an estimate of 11 weeks including one week of judicial reading.
4. Disclosure directions were settled, including maintenance of the 2008–2016 search period and specified custodians. The court declined to permit expert evidence before the expert issues and disciplines had been identified. Expert evidence was to be restricted to that reasonably required to resolve the proceedings under Civil Procedure Rules 1998, rule 35.1.
5. The appointment of a professional litigation friend was approved. The proposed litigation friend satisfied the requirements in Civil Procedure Rules 1998, rule 21.4(3), and was willing and able to act.