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|On 5 November 2015 Brazil suffered its worst ever environmental disaster when the Fundão Dam collapsed, releasing around 40 million cubic metres of tailings from iron ore mining. Russell Hopkins is acting on behalf of more than 200,000 Brazilian Claimants.
The collapse and flood killed 19 people, destroyed entire villages, and had a widespread impact on numerous individuals and communities, not just locally but as a result of the damage to the River Doce system over its entire course to the sea some 400 miles away.
The dam was owned and operated by Samarco Mineração SA (“Samarco”), a Brazilian company jointly owned, in 50% shares pursuant to a joint venture agreement, by the third-party Brazilian entity (“Vale”) and BHP Brasil Ltda (“BHP Brasil”). BHP Australia is the ultimate parent company of BHP Brasil. At the material times BHP Australia and BHP UK operated together as a single economic entity under a dual listed company structure.
Proceedings started in England in November 2018. On 7 August 2019, the defendants applied for the claims to be struck out as an abuse of process; alternatively for the claims to be stayed on jurisdictional grounds. This application was granted by Turner J, but the claimants’ appeal succeeded and the defendants’ applications were dismissed.
The defendants have sought permission to appeal to the Supreme Court. The outcome of that application is not yet known. The Court of Appeal refused the defendants’ request for a stay pending determination of its permission application. Proceedings are progressing before the High Court without prejudice to the defendants’ application to the Supreme Court. The Defendants deny liability on various grounds, including alleged abuse of process, limitation and the standing of certain claimants.
Mrs Justice O’Farrell was satisfied that it was appropriate to direct a trial to address threshold issues of liability because the claims all arise out of one devastating event. The Judge concluded, without attempting to apportion blame, that “it is now time to avoid further delay and make substantive progress in determining the dispute.” In addition to setting a trial date, Mrs Justice O’Farrell made a number of group and case management directions that will be of interest to practitioners.