Município de Mariana & Others v BHP Group (UK) Ltd and BHP Group plc & Anor

A proposed amendment must plead the claimant’s case with sufficient particularity to enable the opposing party to understand the case it must meet. A general allegation of extensive involvement, supported by broad categories of meetings, reports, visits and communications, is insufficient where the claimant relies on those matters to establish control, knowledge, participation, assessment, management or oversight of risks. The court may refuse such an amendment where the pleading fails to identify the conclusions or findings said to arise from the identified material. Procedural burdens and timetable difficulties may reinforce refusal, but the application may be dismissed solely for inadequate particularity.

The claimants applied to amend their current re-amended statement of case by adding paragraph 196A and consequential cross-references. The proposed pleading alleged that BHP was extensively involved in Samarco’s operations through meetings, calls, site visits, reports and other communications.

The amendment was said to support allegations of strict liability under Article 3(IV) of the Environmental Law, and allegations that BHP controlled Samarco, participated in or had knowledge of events leading to the collapse, and assumed responsibility for relevant risks. BHP and Vale opposed the application on grounds of insufficient particularity and the burden imposed before trial.

1. Application refused. The revised paragraph 196A and consequential amendments were not sufficiently particularised to enable BHP to understand the case it had to meet.
2. The amendment alleged extensive involvement in Samarco’s operations by reference to wide categories of contact, but the claimants did not rely merely on attendance or receipt of communications. They relied on those matters as demonstrating the extent of BHP’s involvement. The pleading nevertheless failed to identify what particular conclusions or findings were said to arise from the listed material.
3. The deficiency was especially material to the allegations that BHP’s involvement manifested control over Samarco, established participation in or knowledge of matters leading to the collapse, or showed that BHP assessed, managed or exercised oversight of risks. No sufficient particulars were given of the acts, information, discussions, decisions, timing or purpose relied upon.
4. The proposed pleading therefore failed to remedy the vice identified in the court’s earlier judgment. It amounted to wholesale incorporation of meetings, reports and other contacts without identifying the particular case to be answered.
5. The court also took account of the significant disclosure, investigation and pleading burden that the amendment would impose in a complex case approaching trial, although the application was refused independently on particularity grounds.
6. The court fixed revised dates for disclosure, factual witness statements, expert meetings, joint statements and reports between BHP, the claimants and Vale. The timetable was designed to press the case forward while allowing the parties, including Vale in relation to licensing-law expert evidence, sufficient time to prepare.