Município de Mariana & Ors v BHP Group (UK) Ltd & Anor (Ruling on Model C disclosure)

A Model C disclosure request is permissible where the documents sought are described with sufficient precision for the disclosing party to identify and search for them. The request must also be reasonable and proportionate, having regard to the issues in dispute, the category and scope of documents, the persons and meetings concerned, the date range, and the likely burden of searching. A request may properly be ordered where the pleaded case gives the documents potential significance, even though the court cannot yet determine whether the underlying issue will ultimately affect the result.

Vale applied for Model C disclosure from BHP in relation to issue 14, concerning the extent to which BHP participated in negotiating or performing the TTAC. Vale contended that any liability between Vale and BHP had been compromised by the TTAC and that BHP was bound because relevant individuals participated in its negotiation or performance.

The parties agreed parts of the request concerning organisational structures, reporting lines, employment agreements and board subcommittee minutes. The remaining dispute concerned formal instructions or recommendations given to relevant individuals and records of specified meetings not attended by Vale-affiliated individuals.

1. Application granted in relation to the disputed requests. The agreed parts of the Model C request were recorded, and the court ordered disclosure in respect of parts (c) and (d).
2. Part (c), seeking formal instructions and recommendations provided to 14 identified individuals concerning negotiation of the TTAC or steps taken to comply with it, was sufficiently precise. The request was confined by the identified individuals, relevant meetings, subject matter and document categories. It was therefore capable of being understood and searched, and was reasonable and proportionate.
3. The request was also proper because the pleaded case raised the significance of the capacity in which BHP attended and participated in the TTAC. The court expressed no view on whether that issue would ultimately be dispositive or irrelevant.
4. Part (d), seeking records of six identified meetings not attended by Vale or its affiliates, was likewise reasonable and proportionate. The search could be conducted against the 14 named individuals, was limited in date range and scope, and would not impose a significant burden on BHP.
5. The records sought under part (d) were not restricted to data already collected for disclosure in the main proceedings. Further targeted searches were appropriate because the request concerned identified meetings and could involve a different date range.