Supreme Court will not hear appeal on largest-ever group action

Goodhead: BHP trying to shirk responsibility

The Supreme Court has refused mining giant BHP permission to appeal the Court of Appeal’s decision allowing the largest group action ever to go ahead.

A three-man panel of Lords Hodge, Burrows and Richards decided that the application did not raise “an arguable point of law”.

Last year, the Court of Appeal reinstated the claim – arising from Brazil’s worst environmental disaster – that a High Court judge struck out because it risked becoming “the largest white elephant in the history of group actions”.

The court overturned Mr Justice Turner’s finding that the case was “irredeemably unmanageable” and thus an abuse of process, deciding that even if it was, that was not a reason to consider it an abuse.

Handing down her decision last month following the first case management conference, Mrs Justice O’Farrell said the claim now encompassed some 720,000 claimants and their solicitors, group action specialist Pogust Goodhead, put its value at £36bn.

Thomas Goodhead, the firm’s global managing partner and CEO, said: “We are delighted that the Supreme Court has unanimously rejected BHP’s claim that this trial should not go ahead.

“It is yet another desperate and embarrassing attempt by BHP to try and shirk responsibility and deny the pain and devastation it has caused because it values profit over people’s lives.

“Rather than write yet another chapter in the handbook for corporate wrongdoing, it is time BHP do the right thing by the real victims here, our clients, who have been left to suffer with the catastrophic devastation to their families, homes, land, and way of life.”

In November 2015, the Fundão dam in south-eastern Brazil near Mariana collapsed and over 40m cubic metres of iron ore mine tailings were released into the Doce River. The resulting pollution was catastrophic.

The claimants are made up over individuals, companies and institutions, who contend that BHP – ultimate owner of one of the joint venture partners operating the dam – are liable.

O’Farrell J decided to postpone the 11-week first-stage trial, on threshold liability issues, from 9 April 2024 to 7 October, given the amount of work needed to prepare for it. The claimants had not wanted to change the date, while BHP had called for it to be moved to summer 2025.

Meanwhile, a report from the Local Authority Pension Fund Forum on investment risk in the Brazilian mining sector has criticised the approach to the disaster of BHP and its joint venture partner, Brazilian company Vale.

The forum, which manages £350bn in assets for more than 90 UK councils, said the incident still represented a significant financial risk for investors eight years on.

“LAPFF has a general concern that [those involved] have not accepted an appropriate level of accountability and responsibility for the impacts of their business practices on a range of stakeholders, including affected communities.”

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