In December 2022, BHP Group (UK) Ltd and BHP Group Ltd (“BHP”) brought an Additional Claim against Vale S.A. (“Vale”), the well-known Brazilian mining company. In that Additional Claim, BHP contend that if they are held to be liable to the Claimants (which they deny) then Vale would also be liable to the Claimants.
Vale challenged the Court’s jurisdiction, and argued that there was no serious issue to be tried on the merits (under Brazilian law) and that England was not the appropriate forum for a trial of the Additional Claim because (among other things) of the Brazilian features of BHP’s Additional Claim and the existence of pre-existing Brazilian litigation against Vale.
That jurisdiction challenge was heard in July 2023, and dismissed by Mrs Justice O’Farrell DBE in August 2023 (the “Jurisdiction Judgment”). In the Jurisdiction Judgment, O’Farrell J held that there was at least a serious issue to be tried under Brazilian law in BHP’s Additional Claim (not least in light of competing Brazilian law expert opinions) and that England was clearly the appropriate forum for the Additional Claim given the significant overlap between the Claimants’ claims against BHP, and BHP’s Additional Claim against Vale.
In October 2023, Vale then argued that, pending their application for PTA to the Court of Appeal against the Jurisdiction Judgment that the Additional Claim should be stayed. Although BHP had given undertakings not to treat any participation by Vale as submission to the jurisdiction, Vale argued that the Court could and should not order it to file a replacement acknowledgement of service or a Defence (or require Vale to take any other steps to progress the Additional Claim) whilst its application for PTA was pending. Vale contended that was the effect of CPR 11(7) and (8), relying on the decisions in Toshiba Carrier UK Ltd v KME Yorkshire Ltd [2012] EWCA Civ 169 and Deutsche Bank AG v Petromena ASA [2015] 1 WLR 4225.
O’Farrell J considered these issues in a judgment handed down on 19 October 2023 (the “Stay Judgment”). As regards the acknowledgment of service, O’Farrell J noted that this faced the wording of CPR 11(8) and that “On its face the words are clear that the filing of a replacement acknowledgement of service would amount to a submission on the part of Vale to the jurisdiction of the English court.” Since there was “no direct authority in which the efficacy of such undertakings has been tested. In those circumstances, it would not be right for this court to force Vale to risk submitting to the jurisdiction and thus defeating any jurisdiction appeal before it could be considered by the Court of Appeal, at least on the application for permission to appeal.” ([21]). Accordingly, the Court granted an extension of time to serve the replacement acknowledgement of service.
As regards the Defence, and other case management directions, O’Farrell J held that these did not face the same risk because there is no statutory submission provision such as that in CPR 11(8) which applies to those steps. In both Goldman Sachs International v Novo Banco SA [2016] EWHC 346 (Comm) and Conversant Wireless Licencing SARL v Huawei Technologies Co Ltd (No.2) [2018] EWHC 1216 655 (Ch), a defendant had been ordered to serve a defence even though a jurisdiction appeal was pending. In light of BHP’s undertakings, and in the absence of any statutory submission language, there was no real risk of submission in Vale’s service of a Defence or other participation in the steps leading to trial and so Vale was ordered to do so. Vale’s other arguments about irremediable prejudice and the interests of justice were also rejected.
The Jurisdiction Judgment can be found here and the Stay Judgment here.
Nicholas Sloboda and Veena Srirangam appeared for BHP (led by Shaheed Fatima KC and Victoria Windle KC), instructed by Slaughter and May.
View Judgment