On 6 May 2026, a two-judge panel of the Court of Appeal (Fraser LJ and Lewison LJ) refused BHP Plc and BHP Limited (“BHP”) permission to appeal the judgment of Mrs Justice O’Farrell in Municipio de Mariana & Ors v. BHP Plc & BHP Ltd [2025] EWHC 3001 (TCC), the litigation surrounding the collapse of the Fundão Dam in Brazil (the “Collapse”).
The Collapse in November 2015 resulted in over 600,000 Claimants bringing claims for compensation against BHP in the English court. By her judgment dated 14 November 2025 following a Stage 1 trial of threshold issues of liability, Mrs Justice O’Farrell ruled that BHP was strictly liable for the Collapse as a result of being a “polluter” pursuant to the Brazilian Environmental Law, as well as being at fault for the Collapse for the purposes of the Brazilian Civil Code.
Following the Stage 1 judgment, a Stage 2 trial to determine issues of causation and quantum has been listed to commence in April 2027 and last until March 2028.
In February 2026, BHP applied to the Court of Appeal for permission to appeal O’Farrell J’s judgment on the ground that the Judge’s findings of strict liability and fault-based liability were wrong or unjust by reason of procedural irregularity. BHP sought and was granted an expedited oral hearing of its application for permission to appeal.
By a 34-page written judgment dated 6 May 2026, following a detailed survey of the principles of appellate restraint in reviewing a trial judge’s findings of fact (including as to foreign law), Fraser LJ (with Lewison LJ’s agreement) held that none of BHP’s proposed grounds of appeal had a real prospect of success and there was no other compelling reason for granting permission to appeal. BHP’s application was therefore dismissed with costs.
The Court of Appeal’s judgment, bearing neutral citation number [2026] EWCA Civ 502, is available here.
Daniel Toledano KC, Nicholas Sloboda KC, Oliver Butler, Tamara Kagan, Maximilian Schlote, Veena Srirangam, Jade Fowler and Michael Kotrly (along with Shaheed Fatima KC and Daniel Burgess) acted for the Appellants/Defendants, instructed by Herbert Smith Freehills Kramer.
Alain Choo-Choy KC (along with Andrew Fulton KC and Jonathan McDonagh) acted for the Respondents/Claimants, instructed by Pogust Goodhead.