HT-2022-000304 - [2025] EWHC 1601 (TCC)

The Municipality Claimants (‘MCs’) filed for contempt against the Defendants (together, ‘BHP’) on 7 October 2024 (‘the Contempt Application’). On 12 December 2024, BHP applied to strike out the Contempt Application. This judgment determines that application following a hearing on 5 June 2025.

The material background to the underlying dispute is set out in the earlier judgment of the Court of Appeal at [2022] EWCA Civ 951. On 5 November 2015 Brazil suffered its worst ever environmental disaster when the Fundão Dam in southeast Brazil collapsed, releasing around 40 million cubic metres of tailings from iron ore mining. 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 Brazilian public prosecutor has estimated the cost of remediation and compensation at a minimum of R$155 billion, about £25 billion at today's exchange rates.

In these proceedings over 600,000 claimants seek compensation for losses caused by the disaster from the Defendants, jointly and severally (‘the Main Proceedings’).  The Claimants are all Brazilian and comprise (i) over 580,000 individuals; (ii) over 1,400 businesses, ranging from large companies to sole traders; (iii) 69 churches and faith based institutions; (iv) the MCs; (v) 7 utility companies; and (vi) over 23,000 indigenous and Quilombola individuals. The Defendants joined Vale S.A. (‘Vale’) to the proceedings as Part 20 Defendants, although they are no longer a part of the litigation.

BHP challenged the jurisdiction of the English Court to hear the case. BHP succeeded at first instance but the Court of Appeal allowed the case to proceed against BHP. On 1 June 2023, the Supreme Court refused permission for BHP to appeal. There has been, in addition to various interlocutory matters, one lengthy substantive hearing before O’Farrell J relating to a number of preliminary and liability issues, including whether the MCs have standing to bring their claims. Judgment has not yet been handed down.

At the heart of the Contempt Application is a claim brought by the Brazilian Mining Institute (‘IBRAM’ and ‘the IBRAM Claim’) in the Brazilian Supreme Court which hears constitutional matters (the ‘STF’). IBRAM is a Brazilian private trade organisation whose object amongst other things is to represent and promote the Brazilian mining industry. A subsidiary of BHP, BHP Brasil, is a member of IBRAM. It is said by the MCs that the IBRAM Claim was procured by BHP and was brought pursuant to an agreement by which BHP committed to funding the claim in full. It is said that this was done, together with interim relief sought, with the express intent to block the MCs right of access to justice and legal assistance before this Court.

The IBRAM Claim, filed on 11 June 2024, was of a type of suit known in Brazil as an ‘Action Against the Violation of a Constitutional Fundamental Right’ or an ‘ADPF’. It sought:

The MCs say that if granted, the Substantive and/or Interim Relief sought would immediately impact their ability to continue in the prosecution of their claims in this jurisdiction. The procurement and funding of the IBRAM Claim by BHP is said by the MCs to be a criminal contempt of Court, as an act of interference in the administration of justice in this country.

On 24 June 2024, the MCs filed an anti-suit injunction (‘the ASI Application’) seeking to prevent BHP and Vale from taking any further steps to promote or encourage the IBRAM Claim. Following various exchanges referred to further below, BHP acceded to the ASI Application on 22 July 2024 and gave undertakings to the Court, incorporated into a consent order (the “Consent Order”). By paragraph 1, BHP undertook to refrain from performing “any steps to pursue or prosecute or progress or encourage or otherwise assist, including but not limited to the provision of financial assistance, in” the IBRAM Claim. BHP also undertook “to procure that BHP Brasil will request that IBRAM does not take any further action to pursue the IBRAM Interim Relief Claim.” Paragraph 2 of the Consent Order provided that, in complying with paragraph 1, BHP were not required to take any action that would cause BHP Brasil to breach its existing contractual obligations to pay IBRAM for the costs in relation to the IBRAM Claim and the IBRAM Interim Relief Claim.

It is not alleged by the MCs as part of the Contempt Application that BHP is in breach of the Consent Order.

It is common ground that, irrespective of the Consent Order, the IBRAM Claim cannot be withdrawn (even by IBRAM). Indeed, notwithstanding the request made by BHP Brasil pursuant to the Consent Order, further petitions have been sought by IBRAM from the STF as explained further below.

In its strike out application, BHP argue that (1) the Contempt Application is an abuse of process because (i) it is an abusive attempt to relitigate matters that were disposed of by the Consent Order; (ii) it does not serve the public interest; and (iii) the MCs are not appropriate guardians of the public interest; and (2) the Contempt Application discloses no reasonable grounds for bringing criminal contempt proceedings.