Rule against abuse of process is an obstacle to pursuing foreign group tort claims in England

KEY LEGAL POINTS

In recent years, the English Courts have ruled on a number of attempts to litigate claims against English parent companies arising from alleged wrongdoing by foreign subsidiaries.

Municipio de Mariana & Ors v BHP Group plc & Anor (the "BHP Case") is the most recent decision on this broad topic. Having avoided serving out of the jurisdiction, by not suing the foreign subsidiary (and primary alleged wrongdoer), the claimants have had their claims against the English parent company struck out as an abuse of process.

FACTUAL BACKGROUND

In November 2015, the Fundão dam in south eastern Brazil collapsed, causing loss of life, personal injury, and massive damage to property and the environment. 

The claimants in the BHP Case numbered 202,600 municipalities, businesses, churches, utility companies and individuals. Most had also brought claims in Brazil, including numerous group actions and thousands of individual lawsuits against the Brazilian mining company which owned and operated the dam. One of the group claims had been settled by the creation of a foundation to mitigate environmental damage and compensate individuals. 

Many of the claimants had benefitted, or had otherwise received compensation in the context of Brazilian proceedings. But they were dissatisfied with the redress available in Brazil including the speed and fairness of the compensation schemes.

The defendants were BHP Group plc ("BHP") and BHP Group Ltd ("BHP Ltd"). BHP Ltd was an Australian company and was linked with BHP (a company domiciled in England) in a dual-listed company arrangement with a unified management structure. BHP Ltd was the ultimate owner of BHP Billiton Brasil LTDA ("BHP Brasil"), which had participated in the ownership and operation of the dam. Neither was a defendant in the Brazilian proceedings, though it was agreed that claims could in principle be brought against them in Brazil and both had offered to submit to the jurisdiction of the Brazilian Courts. 

BHP and BHP Ltd applied to halt the English proceedings, on the bases that:

• The claims should be struck out or stayed as an abuse of the process of the court.
• The claims against BHP plc should be stayed by the application of Article 34 of the Recast Brussels Regulation.
• The claims against BHP Ltd should be stayed because England is forum non conveniens.
• Alternatively, both claims should be stayed on case management grounds.

DECISION

Turner J found for the defendants on all four points.

Abuse of process

The claims were an abuse of process. 

Turner J focussed on the practicalities of maintaining parallel proceedings in England and Brazil:

• Advancing substantively the same case simultaneously in two jurisdictions would create significant practical difficulties and would lead to wasted time, cost, and duplication of effort because developments in one set of proceedings would lead to a shifting landscape in the other. 
• The court was entitled to have regard to the demands that would be placed on its resources by group litigation on this scale, particularly in light of the difficulties identified above. 
• There was also a risk of irreconcilable decisions if the English proceedings were permitted to continue. This was a factor that ought properly to be considered in relation to the question of abuse of process as well as the question of jurisdiction.
• The claimants had access to multiple existing routes of redress in Brazil. All but one had not relinquished their right to pursue further any claims they may have in Brazil and were now effectively seeking to have a “second bite of the cherry in England”. Turner J rejected the claimants’ suggestion that they would not be able to secure substantial justice in Brazil.  
• In any event, the alleged problems with the claims in Brazil would not be alleviated by opening up expensive and unmanageable parallel proceedings in England.

Recast Brussels Regulation / forum non conveniens

Having struck out the claims as an abuse of process, Turner J decided the other grounds obiter. 

Turner J held that he would have stayed the English proceedings both pursuant to Article 34 of the Recast Brussels Regulation (in view of the related proceedings pending before another court) and on the grounds of forum non conveniens.

Stay on case management grounds

Although a stay on case management grounds will only rarely be granted, Turner J held that the reasons he had concluded that the English proceedings were an abuse of process would have been adequate to ground a case management stay.

COMMENTARY

The reluctance of the English Courts to entertain forum shopping by groups of litigants seeking redress in respect of alleged wrongs in foreign jurisdictions continues. The BHP Case adds an additional dimension to recent cases focussing on the potential liability of English domiciled parent companies for alleged wrongs by their foreign subsidiaries.

Parent companies seeking to avoid litigation in England in relation to the alleged wrongs of their foreign subsidiaries should consider:

• Offering formally to submit to the jurisdiction of the relevant local courts. Turner J's judgment reinforces the impression given by the judgment of the Supreme Court in Vedanta that the English courts will have regard to the viability of proceedings against the parent company in the relevant local courts when considering questions of its own jurisdiction.
• Avoiding direct operational control over the activities of foreign subsidiaries. English parent companies should ensure local management teams are empowered and that any control is exercised through mandatory policy frameworks, rather than specific direction on individual issues.

An expanded version of this article is available here.