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You are here: BAILII >> Databases >> England and Wales High Court (Technology and Construction Court) Decisions >> Municipio de Mariana & Ors v BHP Group (UK) Ltd & Anor [2025] EWHC 1601 (TCC) (26 June 2025) URL: https://www.bailii.org/ew/cases/EWHC/TCC/2025/1601.html Cite as: [2025] EWHC 1601 (TCC) |
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BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
TECHNOLOGY AND CONSTRUCTION COURT (KBD)
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
MUNICÍPIO DE MARIANA And the Municipality Claimants identified in the Claim Form |
Claimants |
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- and - |
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(1) BHP GROUP (UK) LIMITED (formerly BHP BILLITON PLC and thereafter BHP GROUP PLC) (2) BHP GROUP LIMITED |
Defendants |
____________________
Andrew Scott KC and Maximilian Schlote (instructed by Slaughter and May) for the Defendants
Hearing date: 4 June 2025
____________________
Crown Copyright ©
Mr Justice Constable:
Introduction
(a) substantive relief, including declarations that no Brazilian municipality has standing to sue in their own name or to bring actions in jurisdictions other than in Brazil, and should be ordered to discontinue their claims abroad, which would include the Main Proceedings (the "Substantive Relief"); and
(b) interim relief, including
(i) "the immediate suspension of any interactions between the Brazilian municipalities and law firms, regarding any claims that are already pending or to be filed in foreign jurisdictions, also suspending the provision of information and payments under the contracts executed with the aforementioned law firms";
(ii) the obligation for the municipalities included in an exhibited list "to request, before those jurisdictions, the suspension of lawsuits pending abroad to which they are a party, until the final judgment of the motion; as well as…refrain from filing new lawsuits and/or performing new acts in the context of claims already filed in foreign jurisdictions" (the "Interim Relief").
Factual and Procedural Background
'During a telephone call with Emir Calluf Filho (BHP Brasil's in-house counsel) in around April 2024, Mr Filho informed me in high-level terms about the type of claim that BHP were considering asking IBRAM to bring….'
"(a) Prior to the filing of the IBRAM Claim, BHP Brasil was asked by IBRAM to cover all costs associated with the IBRAM Claim and agreed with IBRAM that it would do so. IBRAM incurred costs on this basis.
(b) BHP Brasil and IBRAM subsequently agreed to enter into a sponsorship agreement that would cover the costs of the IBRAM Claim and potentially
costs associated with other initiatives relating to the mining industry (the "Sponsorship Agreement").
(c) The Sponsorship Agreement provides for an initial amount of R$1,000,000, which can be increased to a total amount of R$6,000,000. Prior to the parties agreeing the Sponsorship Agreement, BHP Brasil was informed by IBRAM of the costs being agreed and incurred in relation to the IBRAM Claim and it was clear by the time of the Sponsorship Agreement that the costs in relation to the IBRAM Claim would exceed the initial amount of R$1,000,000 such that (in line with the agreement to cover the costs of the claim) the further amounts available under the Sponsorship Agreement would be required.
(d) BHP understands that IBRAM has incurred costs of approximately R$4,100,000 in relation to the IBRAM Claim, and that BHP Brasil is contractually bound to pay those costs.
(e) As such, the proposed Paragraph 1 Undertakings contain a carve-out permitting BHP Brasil to provide funding to IBRAM in accordance with BHP Brasil's agreement to fund the costs of the IBRAM Claim. In this regard we note that BHP Brasil has not made any payments to IBRAM to date to fund the costs of the IBRAM Claim.
(f) BHP will procure that BHP Brasil will use best endeavours to agree with IBRAM that the funding to be provided by BHP Brasil in respect of the costs of the IBRAM Claim will be capped at R$6,000,000 and that no further funds will be provided beyond those provided under the Sponsorship Agreement."
'…on 3 April 2024, Emir Calluf, Vice President, Legal, Americas at BHP Brasil, met with Raul Jungmann, IBRAM's CEO, and Rinaldo Mancin, IBRAM's Director of Institutional Relations. At this meeting, Mr Calluf and Mr Jungmann and Mr Mancin discussed the possibility of IBRAM bringing the IBRAM Claim and, at Mr Jungmann's request, Mr Calluf agreed that BHP Brasil would pay for all costs incurred by IBRAM in relation to the IBRAM Claim (if IBRAM decided to bring the claim). Therefore, as and from 3 April 2024, BHP Brasil was contractually bound to provide the funding to pay all of IBRAM's legal fees incurred in connection with the IBRAM Claim, including in circumstances where IBRAM's costs for the IBRAM Claim exceed the total amount of R$ 6,000,000.00 provided for under the Sponsorship Agreement.'
'1.1 The object of the present instrument is to sponsor IBRAM for the development of a strategy to strengthen the sector in support of mining companies in Brazil and with responsible and sustainable activity. This includes the mapping of external stakeholders, sponsorship of events, meetings and participation in events with the aim of defending investments by the mining industry in Brazil.
2.1 The sponsorship value of this AGREEMENT is initially R$1,000,000.00 (one million Reais), which may be increased by mutual agreement until reaching the total value of R$ 6,000,000.00 (six million Reais), provided that such increase is pertinent to the development of the activities described in the First Clause.'
Does the Contempt Application Disclose a Reasonable Ground?
"So the test is, does the notice give the person alleged to be in contempt enough information to enable him to meet the charge? In satisfying this test it is clear that in a suitable case if lengthy particulars are needed, they may be included in a schedule or other addendum either at the foot of the notice or attached to the notice so as to form part of the notice rather than being set out in the body of the notice itself. But a reference in the notice to a wholly separate document for particulars that ought to be in the notice seems to me to be a quite different matter. I do not see how such a reference can cure what otherwise would be a deficiency in the notice. As I read the Rules and as I understand the decision in Chiltern District Council v. Keane, the Rules require that the notice itself must contain certain basic information. That information is required to be available to the respondent to the application from within the four corners of the notice itself. From the notice itself the person alleged to be in contempt should know with sufficient particularity what are the breaches alleged. A fortiori, in my view, where the document referred to is an affidavit, which does not set out particulars in an itemised form, but which leaves the respondent to thecommittal
application to extract and cull for himself from an historical narrative in the affidavit relevant dates and times and so forth, and to work out for himself the precise number of breaches being alleged and the occasions on which they took place.
I do not think, therefore, that if there are deficiencies in the notice issued on 22 June 1987, those deficiencies should be regarded as having been cured by reason of the references in paragraph (1) to the affidavit attached to the notice and, in paragraph (2), to the affidavit accompanying the notice."
'The due administration of justice requires first that all citizens should have unhindered access to the constitutionally established courts of criminal or civil jurisdiction for the determination of disputes as to their legal rights and liabilities; secondly, that they should be able to rely upon obtaining in the courts the arbitrament of a tribunal which is free from bias against any party and whose decision will be based upon those facts only that have been proved in evidence adduced before it in accordance with the procedure adopted in courts of law; and thirdly that, once the dispute has been submitted to a court of law, they should be able to rely upon there being no usurpation by any other person of the function of that court to decide it according to law. Conduct which is calculated to prejudice any of these three requirements or to undermine the public confidence that they will be observed is contempt of court.'
'My Lords, although criminal contempt of court may take a variety of forms they all share acommon
characteristic: they involve an interference with the due administration of justice either in a particular case or more generally as a continuing process. It is justice itself that is flouted by contempt of court, not the individual court or judge who is attempting to administer it.'
'There are numerous statements of like principle, Most relevantly, it is established by clear authority, including the decision I have cited together with R v Kellet (1976) 1 QB 372, R v Lovelady (1982) W.A.R. 65 and Raymond v Honey (1983) AC 1, that conduct which has the prohibited tendency will constitute contempt irrespective of whether the conduct itself may otherwise be lawful or in exercise of an otherwise legal right.'
'[BHP] is quite right in saying that it has a right to access to Parliament but that is not the end of the matter. [BHP] is also a litigant before this court. Nothing I say is directed to [BHP's] access to a sovereign Parliament…What I say is directed to access by the plaintiffs to this court. It is this court in which I am sitting and it is this court to which the plaintiffs have come for justice. The circumstance that also [BHP] has the right of access to a foreign Parliament does not meet the question that the plaintiffs have a right to access to law in this court. It is that latter question which is before me….it is entirely within this court's competence to deal with interference in this court's administration of justice.'
Is the bringing of the Contempt Application abusive re-litigation?
The principles
".1 Although historically it was said that, absent special circumstances, a second claim could not be brought if it could have been brought in earlier proceedings (Henderson v Henderson), that is too dogmatic an approach (Johnson v Gore Wood).
.2 Instead, what is required is "a broad merits-based judgment which takes account of the public and private interests involved and all the facts of the case, focussing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before" (Johnson v Gore Wood).
.3 The burden rests on the defendant to establish that it is an abuse of process for them to be subjected to the second action (Johnson v Gore Wood, Michael Wilson). Because the focus is on abuse, it will be rare for a court to find that a subsequent action is an abuse unless it involves "unjust harassment or oppression" (Lord Clarke MR in Dexter and Lloyd LJ in Stuart v Goldberg Linde). Putting the same point another way, the courts will not lightly shut out a genuine claim unless abuse of process can clearly be made out (Lloyd LJ in Stuart v Goldberg Linde, and Simon LJ in Michael Wilson).
…
.6 A decision as to whether a claim is an abuse of process is not a matter of discretion, but the decision will turn on an evaluation which is "very similar" to the balancing exercise undertaken when a judge exercises his or her discretion (Aldi, Stuart v Goldberg Linde).
.7 That evaluation must consider, not only whether there has been a misuse of the court's process, oppression or harassment (Dexter), but also the causative effect of the failure to follow the Aldi guidelines (Otkritie). This may involve, for example, consideration of hypothetical consequences and possible case management outcomes (Barrow, Otkritie).
.8 The evaluation will also consider the public interest, as set out in Johnson v Gore Wood and Aldi, which is unchanging from case to case (the efficient use of court resources, the needs of other users, finality etc.), and the legitimate private interests involved, which will always vary, depending on the particular facts. This may therefore involve a consideration of the consequences of striking out or not, in a broadly similar way to the third part of the test in Denton.
.9 This court will be reluctant to interfere in the evaluation carried out by the judge at first instance, and will only do so if the judge took account of something he or she should not have done, failed to take into account something he or she should have done, erred in principle, or reached a conclusion that was so perverse as to be "plainly wrong" (Aldi, Stuart v Goldberg Linde)."
Application of the Facts to the Principles
'…The Defendants assert that they are legallycommitted
to funding the IBRAM Claim in full.
The IBRAM Claim cannot be directly withdrawn or terminated by IBRAM….As such it is now clear that the value of the undertakings provided by the Defendants is necessarily limited as, having been responsible for instigating and (as the Municipality Claimants now know) agreeing to fund the IBRAM Claim, BHP and/or IBRAM are not able to withdraw it.'
'further, BHP agreed to fund the costs of the IBRAM Claim. The BHP costs agreement is, on the Defendants' case, said to provide for an initial amount of R$1m which can be increased to R$6m (see Neill §50 and §32.1). That is approximately £846,000.00, two-thirds of which is understood to already have been incurred by IBRAM as at the date of SM's letter of 13 July 2024.'
'Though suggestive of a contractual liability, it is unclear that one was incurred: first, the language suggests both informality of agreement and that the operative legal principle is IBRAM's reliance (so that some form of—unexplained—estoppel is allegedly operative); secondly, the subsequent explanation suggests that this broad 'agreement' is not the source of the difficulty in any event'.
'It is therefore apparent that the IBRAM Claim was not only initiated at BHP's behest, the claim is entirely funded by BHP. It is said that this is pursuant to an (undated and unparticularised) sponsorship agreement, said to provide for an initial amount of R$1m which can be increased to R$6m (the alleged "Sponsorship Agreement"), but, strikingly, the Defendants have not provided this document, despite being requested to do so. Again, this has been stated in correspondence, but, it is not addressed in Michael 25'.
Does the Contempt Application serve the Public Interest?
"…They will include factors bearing on the gravity of the alleged contempt, including whether it was persisted in to the point at which it was likely to interfere with the course of justice. They will include factors bearing on the extent to which the proceedings would be likely to promote the authority of the court and the administration of justice: whether, for example, the continuation of the proceedings would be likely to have a salutary effect by drawing the attention of the legal profession to a particular problem, or whether the discontinuation of the proceedings would run the risk of encouraging parties to treat the court's orders as being of little importance. They may include the relationship between the contempt proceedings and other proceedings: whether, for example, the contempt proceedings will disrupt the progress of the substantive proceedings or will involve a duplication of evidence; or whether, as was indicated in the Anton Piller case, the party in contempt may be effectively penalised through the contempt being brought out in the substantive proceedings, with the effect of damaging his credibility. The court will also wish to have regard to whether the proceedings would be likely to justify the public resources that would have to be devoted to them: particularly in a complex case, contempt proceedings may involve a substantial call on court time and resources. These are not considerations which the court can disregard: the proper administration of justice includes ensuring that cases are dealt with expeditiously and without undue demands on the resources of the court."
Are the MCs/PG appropriate guardians of the public interest?
"142. One consequence I have already identified, namely that the court recognises the particular capacity of contempt applications or the threat of contempt applications to be used vexatiously by litigants to further interests that it is not the function of the contempt jurisdiction to serve. That leads to the obvious materiality, at all events if there is some reason to question it on the facts of a given case, of the 'prosecutorial motive' of a claimant/applicant pursuing a contempt charge...
143. A further consequence is that the claimant/applicant pursues a contempt charge as much as quasi-prosecutor serving the public interest as it does as private litigant pursuing its own interests in the underlying dispute. The claimant/applicant needs to understand that; and if it is legally represented, as here, the legal representatives need to understand that their role as officers of the court is acutely pertinent, even if (to repeat) the process is not to be equated with a private prosecution in a criminal court. Thus, it appears to have struck Teare J as obvious in the long-running Ablyazov litigation that the quasi-prosecutorial role of the claimant/applicant in pursuing a contempt charge means its proper function is to act generally dispassionately, to present the facts fairly and with balance, and then let those facts speak for themselves, assisting the court to make a fair quasi-criminal judgment: JSC BTA Bank v Ablyazov [2012]EWHC
237 (
Comm)
at [15]."
"KJM confirms that permission to a person to pursue public law proceedings allows that person to act in a public rather than a private role, to pursue the public interest. The court will therefore be concerned to satisfy itself that the case is one in which the public interest requires that thecommittal proceedings be brought and that the applicant is a proper person to bring them (see paras 9, 11, 16, 28 and 29). Those considerations do not arise in a private application for civil contempt and for which no permission is required."
(1) the first exchange of correspondence relied upon (24/25 July 2024 and 4/15 August 2024) related to public statements made by BHP immediately following the Consent Order about the continuation of the IBRAM Claim and BHP's view that the MCs' litigation in England was unconstitutional. PG alleged that these statements amounted to breach of the undertaking that BHP would not take any further action "to encourage" the IBRAM Claim. That claimed breach has not been pursued, and this fact is perhaps reflective of whether, had it been, it would ultimately have succeeded. However, the request for an explanation as to the compatibility between the public statements and the undertaking not to encourage the IBRAM Claim was not entirely without justification. Indeed, whether strictly compliant with the letter of the Consent Order, PG's contention that the public statements were not in its spirit cannot be said to be entirely baseless.
(2) PG's letter of 30 August 2024 did not allege any actual breach of the Consent Order. Whilst Mr Michael says that the letter identified no grounds upon which to initiate contempt proceedings, that is not right: it explicitly referred to the interference with the administration of justice and the initiation of the IBRAM Claim, the grounds which I consider are reasonably arguable;
(3) PG's letter of 6 September 2024 related to an event organised by IBRAM and described by PG in their letter as being aimed at lobbying powerful stakeholders in support of the IBRAM Claim. Without forming any concluded view, from the description of the topics and speakers, PG's description does not appear entirely unwarranted even if, in SM's view, it was 'a partial account'. In these circumstances, asking (in the context of the undertaking by BHP not to encourage the IBRAM Claim) about BHP's involvement in or funding of the event was not vexatious. That the matter was not pursued in light of SM's confirmation that BHP was not aware of any individuals from BHP or BHP Brasil having attended or those entities having funded the event does not mean the enquiry was itself illegitimate;
(4) Similarly, on 9 October 2024, PG stated that from public information obtained, it appeared that Justice Barroso (President of the STF, as well as President of the National Council of Justice ('CNJ')) held a meeting with Mr Mike Henry, CEO of BHP Australia; Ms Caroline Cox, General Counsel of BHP; Mr Emir Calluf Filho, Vice President (Legal), Americas, BHP Brasil; (and Mr Alexandre D'Ambrosio, Executive Vice-President of Corporate and External Affairs, Vale S.A; and Mr Murilo Muller, Controllership Director & Chief Accountant, Vale S.A.). Having identified this, in light of the undertaking, a letter seeking confirmation that the discussions had nothing to do with the substance of the IBRAM Claim was not inappropriate. The letter did not make allegations but sought an explanation, which was provided. The matter was not pursued when SM indicated that the meeting related to the settlement process in Brazil, in respect of which the CNJ has a role. This exchange does not demonstrate a vexatious pursuit of baseless allegations.
(5) PG's letter of 17 October 2024 sought information relating to the Oral Agreement and costs incurred with reference to the IBRAM Claim to date. Whilst perhaps unnecessarily cloaked in reference to ensuring compliance with the Consent Order, the nature of the enquiries were of themselves of an unsurprising nature.