After the flood

In Municipio de Mariana & Others v BHP Group PLC and BHP Group Ltd [2021] EWHC 146 (TCC) the High Court struck out a claim, brought in England by more than 200,000 Brazilian claimants in relation to the collapse of the Fundao Dam in Brazil in 2015. The case is believed (at least in terms of the number of parties involved) to have been the largest action ever brought in an English court.

In brief, the existence of parallel proceedings concerning the same matters in Brazil rendered the English proceedings an abuse of process.

Issues based order

The Court set out the principles applying to Issues based orders noting inter alia that the Court’s aim is to “make an order that reflects the overall justice of the case” and that, while costs should follow the event, there is no automatic rule requiring reduction of a successful party’s costs if he loses on one or more issues.

In any litigation, especially complex litigation, any winning party is likely to fail on one or more issues in the case.

In the present case, the defendants narrowed the scope, and abandoned part, of the case which they were presenting. The Judge said that this came about not because the abandoned part was doomed to fail – rather, the defendants were “distilling the thrust of their contentions [so that] the Court would thus be best equipped to deal with the point proportionately”.

The defendants were entitled to their costs per the general rule in CPR 44(2) – “that the unsuccessful party will be ordered to pay the costs of the successful party”.

Interim payment on account

The court assessed an interim payment on account of costs (per CPR 44.2(8), noting the “proper approach” as set out in the guidance notes in the White Book that:

the determination of “a reasonable sum” involves the court in arriving at some estimation of the costs that the receiving party is likely to be awarded by the costs judge in the detailed assessment proceedings or as a result of a compromise of those proceedings

and noting that this is not “the “irreducible minimum” of what may be awarded on detailed assessment” but “would often be … an estimate of the likely level of recovery subject, to an appropriate margin to allow for error in the estimation”.

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