Munícipio de Mariana v BHP Group (UK) Limited & Anor

A defendant who has unsuccessfully challenged jurisdiction may seek an extension of time for a replacement acknowledgment of service, because filing it under CPR 11(8) ordinarily constitutes submission to jurisdiction. Other procedural steps, including filing a defence, do not automatically amount to submission. A stay pending appeal is discretionary. The court must assess the circumstances and balance the risk of injustice, giving particular weight to solid grounds of irremediable harm. Temporary inconvenience, litigation costs and manageable confidentiality concerns will not normally justify a stay where progress is necessary to avoid prejudice to other parties. Foreign-law experts may explain the applicable legal principles, but applying those principles to the facts is for the court. Permission to substitute an expert will generally be granted where justified by the circumstances and overriding objective.

The judgment concerned consequential applications following the dismissal of Vale SA’s jurisdiction challenges in the Part 20 claims arising from the Mariana dam collapse. Vale sought an extension of time for replacement acknowledgments of service, a stay of the Part 20 claims pending an application for permission to appeal and any appeal, and permission to rely on further Brazilian arbitration-law expert evidence in support of a proposed stay under section 9 of the Arbitration Act 1996.

The defendants opposed a stay and sought directions preserving the existing timetable. The central questions were whether procedural steps pending a jurisdiction appeal would amount to submission, whether the proceedings should be stayed, and what expert evidence was admissible and reasonably required.

1. Replacement acknowledgment of service. CPR 11(8), on its face, treats the filing of a replacement acknowledgment of service after an unsuccessful jurisdiction challenge as acceptance of the court’s jurisdiction. Although undertakings had been offered, there was no direct authority testing their efficacy. The time for Vale to file replacement acknowledgments was therefore extended to 1 December 2023, allowing time to seek permission to appeal.
2. Stay pending appeal. The commencement of an appeal or grant of permission does not operate as a stay under CPR 52.16. The court retains a discretion. The governing question is whether refusing or granting a stay risks injustice, assessed by balancing the interests of all parties. Relevant considerations include the stage of the proceedings, the nature and extent of the remaining steps, the need for immediate progress and the likely consequences of delay.
3. There was no principle requiring all further steps to await the jurisdiction appeal. Filing a defence did not carry the automatic submission consequence in CPR 11(8). Vale’s asserted burden, confidentiality concerns and potential costs did not amount to solid grounds of irremediable harm. Confidentiality could be addressed by restricting access to the court file or using a confidentiality ring. The Part 20 claims could be progressed within a demanding but achievable timetable. The stay application was dismissed.
4. Expert evidence. Permission was granted for Professor Lee to provide evidence on Brazilian rules governing interpretation of arbitration agreements and the circumstances in which non-signatories may be bound. Permission was refused for evidence applying those principles to the facts or expressing an opinion on the contractual meaning in this case. That application was for the court. Directions were given for the section 9 application, pleadings, disclosure and further case management.

This was a consequential first-instance judgment following the court’s earlier jurisdiction judgment, reported at [2023] EWHC 2030. The court extended time for replacement acknowledgments of service, refused a stay pending appeal, and gave further directions.