A compensation case against BHP over a 2015 mining disaster in Brazil has expanded to 700,000 claimants seeking damages of up to £36bn, making it the largest opt-in class action lawsuit ever brought in the UK.
The case relates to the collapse of the Fundão tailings dam at the Samarco Mariana mine complex in the state of Minas Gerais, which killed 19 people and released 40mn cubic metres of tailings that polluted hundreds of kilometres of waterways. The Brazilian claimants are seeking compensation for alleged damage to their homes and livelihoods.
“The number of people who have signed up reflects the lack of confidence in the existing redress mechanisms,” said Tom Goodhead, chief executive of Pogust Goodhead, a law firm representing the claimants. “We believe it is the biggest in the world by the number of clients who have opted in.”
The claimants’ lawyers, which include Pogust Goodhead in the UK as well as local lawyers in Brazil, stand to earn as much as 30 per cent of the settlement if their case is successful.
Goodhead said the additional claimants in Brazil had been signed up by local lawyers. “It runs like a small military operation, we look at every town, village and city . . . Every client in our case has a lawyer in Brazil, as well as a lawyer in England.”
The law firm’s new estimate for maximum potential damages of £36bn, published on Wednesday, is based on an estimate of about £17bn in damages plus 12 per cent interest per year since the accident. In official court documents, most of the damages have not yet been fully quantified.
A procedural hearing will be held at the end of this month, with a trial scheduled to start in April 2024 that will initially determine whether or not BHP has liability. If BHP is found to be liable, a subsequent ruling on the amount of the compensation due could take several years.
“BHP will continue to defend the UK group action and denies the claims in their entirety,” the company said in a statement.
“BHP’s view remains that this action is unnecessary as it duplicates matters already covered by the existing and ongoing work of the Renova Foundation (under the supervision of the Brazilian courts) and other legal proceedings in Brazil,” it said.
While a separate legal case over compensation for the disaster is under way in Brazil, the UK Court of Appeal ruled last year that there was “relatively limited” overlap between the two cases.
There are practical questions about how such litigation can be managed given the thousands of claimants who have been signed up.
Many of the largest lawsuits currently in the English courts are “opt-out”, which are seen as easier to manage as they are brought by a class representative and consumers are automatically enrolled unless they specifically choose not to be. They include the case brought by Walter Merricks, the former UK financial ombudsman who is representing 46mn people in a £10bn lawsuit against Mastercard.
The project where the tailings dam collapsed was owned and operated by Samarco, a Brazilian company jointly owned by Vale and BHP. At the time of the accident, BHP was dual-listed in London and in Sydney.
BHP and Vale set up the Renova Foundation in 2016 to carry out repair and compensation work for those affected by the tailings dam collapse. The foundation has spent nearly $6bn so far, including $2.6bn paid in indemnities and financial assistance to 410,000 people.
