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

On a jurisdiction challenge to Part 20 claims, the claimant must show a serious issue to be tried, a good arguable case within the relevant gateway, and that England is clearly or distinctly the appropriate forum.

A serious issue requires a realistic claim supported by a plausible evidential basis. The court should avoid a mini-trial, particularly on foreign law, unless the point is short and fully evidenced. In assessing forum, the court considers the natural forum in the context of the whole litigation. Avoiding multiplicity of proceedings and inconsistent judgments may be powerful factors.

The claimants, predominantly Brazilian individuals, businesses and institutions, brought extensive claims in England against BHP arising from the collapse of the Fundão Dam in Brazil. BHP brought two Part 20 claims against Vale, a Brazilian company and co-shareholder of the dam operator, seeking declarations and contribution under Brazilian law or alternatively the Civil Liability (Contribution) Act 1978.

Vale challenged jurisdiction under CPR 11, arguing that BHP had no accrued contribution right, that the claims were time-barred or released, and that Brazil was the appropriate forum. The central questions were whether there was a serious issue to be tried and whether England was clearly or distinctly the appropriate forum.

1. Applications dismissed. Vale’s applications challenging jurisdiction over both Part 20 claims were dismissed.
2. Under CPR 11, BHP had to establish a serious issue to be tried, a good arguable case within the relevant service-out gateway, and that England was clearly or distinctly the appropriate forum. Vale accepted that failure on the first or third limb would defeat the jurisdiction challenge without a separate determination of the gateway.
3. There was a serious issue to be tried on BHP’s Brazilian-law contribution case. The experts agreed that joint and several liability could arise under Brazilian law and that reimbursement would require payment by BHP. They disagreed whether BHP could obtain a declaration or establish a contribution right before liability was judicially recognised and payment made. That contested expert evidence was coherent and plausible and required trial scrutiny.
4. Limitation and settlement issues also raised substantial factual and legal disputes. The court could not summarily determine the effects of interruption of limitation periods, joint and several liability, settlement agreements or releases without fuller evidence.
5. The alternative case under the Civil Liability (Contribution) Act 1978 did not need to be determined. The Supreme Court had held in SSAFA that the Act did not automatically apply where foreign law governed, but success on the Brazilian-law case was sufficient for the jurisdictional limb.
6. England was clearly the appropriate forum. Brazil was the natural forum for a standalone contribution claim, but the Part 20 claims formed part of substantial English proceedings. There was significant overlap in the allegations concerning ownership, control, knowledge, environmental liability and controlling-shareholder liability. A Brazilian forum would require parallel proceedings, causing duplication and a real risk of inconsistent findings.
7. The Part 20 claims could be tried with the main claims at the scheduled threshold liability trial. Vale was ordered to serve its defence by 10 November 2023 and to comply with specified expert-evidence directions.

The judgment records that the underlying claims were struck out at first instance in [2020] EWHC 2930 (TCC), but that decision was reversed by the Court of Appeal in [2022] EWCA Civ 951. The Supreme Court refused permission to appeal on 1 June 2023. Those decisions concerned the claimants’ proceedings against BHP, not the present Part 20 jurisdiction applications.