Brazil dam claimants to appeal “fundamentally flawed” strike-out

Goodhead: We will continue to fight ceaselessly

The law firm representing more than 200,000 claimants over the Fundão Dam disaster in Brazil has blasted the decision to strike out the action as “fundamentally flawed”.

Mr Justice Turner ruled that the £5bn action was an abuse of process because the claimants were bringing similar proceedings in Brazil at the same time, highlighting the logistic problems.

Group action firm PGMBM maintained that dual-listed Anglo-Australian company BHP should face the action in its home country – especially as the redress achieved in Brazil “has been entirely inadequate” – and said it would appeal.

Managing partner Tom Goodhead said: “BHP have succeeded, once again, in delaying the provision of full redress for the victims of the worst environmental disaster in Brazilian history. BHP’s legal chicanery, both in England and in Brazil, has resulted in a fundamentally flawed judgment that we intend to appeal immediately.

“Elements of the judgment have no proper basis in both English and European law, such that we are overwhelmingly confident that it will be overturned.

“We will continue to fight ceaselessly, for however long it takes, in any court in the world to ensure that BHP are held accountable for their actions.”

Mr Goodhead said BHP was wrong to argue that full redress was available to the victims in Brazil. “The victims see that. The United Nations sees that. And we have every confidence that the Court of Appeal will see that.”

Duarte Junior, the mayor of Mariana, a city close to the dam, said that compensation so far “has been completely inadequate and every day we still live with the effects of what happened”.

He said: “This case represents the hopes and the rights of every individual in Mariana and beyond. BHP did not respect our rights in Brazil. This case in England should force them to acknowledge our rights now.”

In September, UN special rapporteur Baskut Tuncak, found the victims had not received “an effective remedy”, which was “emblematic of what confronts those who seek justice and remedy against extractive industries” in Brazil.

He wrote: “In the aftermath of the disaster, BHP and Vale [who owned the joint venture that operated the dam] rushed to create the Renova Foundation to provide the affected communities an effective remedy.

“Unfortunately, the true purpose of the Renova Foundation appears to limit liability of BHP and Vale, rather than provide any semblance of an effective remedy. Institutional shortcomings are well documented in literature and litigation. Today, none of 42 projects are on track.”

PGMBM reported too that, last month, Brazilian federal prosecutors accused BHP and Vale, the co-owners of the dam, of colluding with a Brazilian judge to fix compensation for victims, and of interfering with the lawsuit against BHP in the UK.

Mr Justice Turner considered the complaints made about the redress available in Brazil, but said they would “not be alleviated by the opening up of a second front in England where any proceedings would be expensive, almost interminable, unfocused, unpredictable and unmanageable”.

He anticipated that an English action would also disrupt the Brazilian proceedings.

“I do not doubt that very many people have experienced considerable challenges in obtaining what they consider to be just and prompt compensation through the procedures available in Brazil but it would be difficult to exaggerate the enormity of the task which any jurisdiction would face in achieving this object to the satisfaction of all,” he said.

Turner J added that, on the evidence presently available, just under half of the claimants have already accepted payments from Renova.

PGMBM is acting for 200,000 individuals, 25 Brazilian municipal governments, 530 businesses, a Catholic archdiocese and members of the Krenak indigenous community.

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