MUNICÍPIO DE MARIANA v BHP GROUP (UK) LIMITED [2025] EWHC 1771 (TCC)

[2025] EWHC 1771 (TCC)Case No HT-2022-000304
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
TECHNOLOGY AND CONSTRUCTION COURT (KBD)
Venue Royal Courts of Justice, Rolls BuildingDate 11 July 2025
London, EC4A 1NL
Before
Mrs Justice O'Farrell DBE
Between
MUNICÍPIO DE MARIANAClaimantBHP GROUP (UK) LIMITEDDefendants(2) BHP GROUP LIMITEDDefendant
Alain Choo Choy KC, Robert Marven KC, Sophie Holcombe, Jonathan McDonagh, Russell Hopkins and Anisa Kassamali (instructed by Pogust Goodhead, a trading name of PGMBM Law Ltd) for ClaimantsShaheed Fatima KC, Victoria Windle KC, Nicholas Sloboda KC, Oliver Butler and Michael Kotrly (instructed by Slaughter and May) for DefendantsHearing Hearing dates: 2 nd and 3 rd July 2025
Approved JudgmentThis judgment was handed down remotely at 12:00 noon on 11 July 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................
[1]The following applications are before the court: i) the claimants’ application dated 20 June 2025 for permission to make amendments to the Re-Re-Re-Amended Master Particulars of Claim (“Master POC”) and Appendices thereto; ii) the claimants’ application dated 13 June 2025 for directions for the Second Stage trial; iii) the claimants’ application dated 13 June 2025 for disclosure and/or information relating to compensation agreements entered into by some of the claimants in Brazil; iv) the defendants’ application dated 24 April 2025 for an order that the claimants provide security for costs in respect of procedural steps required to be taken in respect of the Second Stage trial up to 31 December 2025 and/or third party funding information; v) the claimants’ applications:(a) dated 13 June 2025 for continuation of Ms Kässmayer’s appointment as litigation friend for the child claimants; and(b) dated 26 June 2025 for continuation of Ms Garrido’s appointment as litigation friend for the protected party claimants; vi) the defendants’ application dated 13 June 2025 for an order for costs management of the Second Stage trial.

Background

[2]The claims arise out of the collapse of the Fundão Dam in South East Brazil on 5 November 2015, releasing millions of cubic metres of tailings from iron ore mining and causing widespread destruction and environmental pollution.[3]The background to these proceedings is set out in earlier judgments by the Court of Appeal at [2022] EWCA Civ 951 and by this court at [2022] EWHC 330, [2023] EWHC 1134 and [2023] EWHC 2030.[4]The claims, seeking compensation for loss and damage caused by the collapse of the dam, are brought jointly and severally against the defendants. The claimants are all Brazilian and currently comprise(i) 586,906 individuals;(ii) 1,433 businesses;(iii) 69 faith based institutions;(iv) 32 municipalities;(v) 7 utility companies; and(vi) 23,750 indigenous and Quilombola community members.[5]The First Stage trial of threshold liability issues was heard between October 2024 and March 2025. Judgment was reserved and has not yet been handed down. The Second Stage trial is currently listed to commence on 5 October 2026 with an estimate of 22 weeks. One of the main purposes of this CMC is to consider the nature and scope of the Second Stage trial and set out a framework for preliminary procedural steps to be taken in parallel planning for any Second Stage trial.

The claimants’ amendment application

[6]On 20 June 2025 the claimants issued an application, seeking an order for permission to amend their pleadings as set out in the draft amended Master POC and Appendices. The defendants consent to most of the proposed amendments but some remain in dispute, as do consequential directions for responsive pleadings and minor issues on costs.[7]Witness statements have been filed in respect of the application: i) on behalf of the claimants, the sixth witness statement of Mr Thomas Ainsworth, solicitor in Pogust Goodhead, dated 13 June 2025; and ii) on behalf of the defendants, the fifth witness statement of Ms Camilla Sanger, solicitor and partner in Slaughter and May, dated 23 June 2025.[8]In addition to tidying up revisions, the proposed amendments that are not opposed by the defendants can be summarised as follows: i) At paragraphs 6, 29 and 33A of the Master POC, there is an expanded description of the indigenous and Quilombola peoples said to have been affected by the collapse of the dam. Amendments to the heads of loss claimed by members of these communities are identified in Section F6. Appendix III contains a revised and substantial pleading of the history, practices, traditions and cultural heritage of the indigenous and Quilombola claimants, their protected rights and the harm suffered as a result of the collapse of the dam. Appendix III runs to 178 pages and most of the material is new. ii) Section C5, the consequences of the dam collapse, has been very substantially expanded by the insertion of 269 additional paragraphs, pleading in detail: a) at C.5.2, the progression and impact of the tailings; b) at C.5.3, the composition of the tailings; c) at C.5.4, contamination of the water courses, coastal regions, soil and air; d) at C.5.5, environmental impacts of the same on flora, fish, mammals and other organisms, and damage caused by destruction and degradation of the biotic environment; e) at C.5.6, socio-economic consequences of the collapse on farming, fishing, food, tourism and the mining industries, damage to buildings and infrastructure, impact on cultural, religious and leisure practices; and f) at C.5.7, physical and psychological injuries suffered. iii) Sections F.1 through to F.6 have been amended to reflect the revised heads of loss and damage. This includes amendments to Appendix I (claims made by the municipalities), to plead claims for compensation in respect of patrimonial losses arising from falls in taxes and other revenues.[9]Existing Section C6 pleads the chronology of criminal and civil proceedings in Brazil arising out of the collapse of the dam, including the establishment of the Renova Foundation and Novel Scheme to provide compensation to those affected by the collapse. No objection is taken to the general updates to that section but the following proposed amendments to Section C6 and a new Appendix VI are opposed:
“257B. The operation of the Renova schemes provided for by the TTAC and modified in accordance with the TAC Governance, and the further scheme purporting to address the inadequacies of Renova known as the “Novel System”, provoked widespread controversy within Brazil; and generated litigation over several years in the Brazilian courts. On 25 October 2024, the Federal and State Government entities party to the TTAC, the Federal Public Prosecutor's Office (MPF), Samarco, Vale, BHP Brasil and Renova signed a further settlement, the Acordo Judicial Para Reparação Integral e Definitiva Relativa ao Rompimento da Barragem de Fundão (the “Repactuation Agreement”), that, among other measures, superseded the TTAC, the TAC Governance, and provided for the winding up of Renova. 257C. The Repactuation Agreement was ratified by the STF in a decision dated 6 November 2024. In that decision: 257C.1 At paragraph 42 of the STF judgment (and as provided for in Clause One paragraph 3 of the Repactuation Agreement), it was explained that the Repactuation Agreement did not provide for the compensation of supervening or unknown damage as of the date of the agreement. 257C.2 The STF noted that the terms of the Repactuation Agreement made provision for compensation schemes to individuals and municipalities, without prejudice to those parties’ rights to continue to pursue redress via legal action (including the present English proceedings) as an alternative route. 257D. The sums to be dispersed under the terms of the Repactuation Agreement are to be funded, via Samarco or Renova, by Vale and BHP Brasil. The 50% funding for which BHP Brasil is responsible will be provided ultimately by the Defendants or at their expense. The sums payable under the Repactuation Agreement are stated as being: 257D.1 R$ 100 billion to be paid to government entities, in instalments over a period of 20 years, comprising: 257D.1.1 R$ 29.7 billion payable to the Federal Government; 257D.1.2 R$ 25.1 billion payable to the state of Minas Gerais; 257D.1.3 R$ 14.6 billion payable to the state of Espírito Santo; 257D.1.4 R$ 12 billion payable to the Federal Government for allocation to the states of Minas Gerais and Espírito Santo in respect of Universal Health System expenditure; 257D.1.5 R$ 8 billion for reparations related to collective damages and aid to indigenous, quilombola and traditional communities; 257D.1.6 R$ 6.1 billion for the 49 municipalities recognised as having been affected, subject to adherence by the municipality to the terms of the Repactuation Agreement (which is optional); 257D.1.7 R$ 1.65 billion related to Mariana resettlements; 257D.1.8 R$ 1.26 billion for programmes to be administered by the “Institutions of Justice”, which includes judicial authorities; and 257D.1.9 R$ 1.5 billion to complete compliance with the “Definitive Compensation Programme” (“PID”), i.e. a new individual compensation scheme. 257D.2 An estimated sum of R$ 32 billion (£4.1 billion) payable in respect of a range of obligations to be fulfilled by Samarco including: resettlement actions; repair of impacted infrastructures between Fundão and Candonga (i.e. the Risoleta Neves HPP); provision of an environmental recovery plan; the transition and termination of existing obligations from e.g. the TTAC; payment of environmental fines imposed by the Federal Union, the States of Minas Gerais and Espírito Santo, and fines imposed by CIF; and the provision of individual compensation to victims (including PID). 257E Only around 36% of the Claimants currently listed on the Master Schedule are potentially eligible to apply for individual compensation under the Repactuation Agreement. Unless they had submitted a registration request to Renova by 31 December 2021 or under the Novel System by 29 September 2023, those Claimants whose claims were issued in these proceedings in February 2023, and the September Claimants, are not eligible and were not taken into account by the parties to the Repactuation Agreement when calculating the sums to be made available as compensation. 257F The Repactuation Agreement acknowledges that “The obligations outlined in this AGREEMENT aim at the full and definitive reparation, restoration, recovery, compensation, and/or indemnification of socio-environmental damages and collective and public socioeconomic damages of any nature (including social, moral, and non-economic damages) resulting from the DAM FAILURE [i.e. the Collapse] and its developments” (clause 1, paragraph 1). The Repactuation Agreement requires that remedial and/or compensatory measures take place in a total of 49 municipalities (37 of these Municipalities are or have been Claimants in these proceedings) - namely those municipalities identified in the TTAC, resolutions by the CIF and five other municipalities - and in the rural properties (or those who carried out economic activities on rural properties) located up to 5 km from the Gualaxo do Norte, Carmo and Doce Rivers (the “Recognised Areas”). 257G It is to be implied or inferred from the agreement to provide reparation and/or compensation in the Recognised Areas, together with (a) the duty of good faith in Article 422 of the Civil Code, and (b) Article 412, sole paragraph, of the Brazilian Code of Civil Procedure, that those areas (at a minimum) suffered some loss and damage as a result of the Collapse; and further that the Defendants, who were involved in the negotiation of the Repactuation Agreement (as to which see paragraph 257I below), are to be taken as having recognised such, notwithstanding clause 146 sole paragraph of the Repactuation Agreement. On its proper construction, clause 146 sole paragraph merely provides that the terms of the Repactuation Agreement do not represent recognition of a causal link between the Collapse and the specific extent of damage dealt with therein, (save that the Claimants acknowledge that such recognition is expressly negated in respect of the specific areas described in clause 69 sole paragraph of Annex 2 of the Repactuation Agreement). In addition, the conclusion of the Repactuation Agreement is relevant to the reversal of the burden of proof (at least as regards the areas adversely affected by the Collapse and the types of damage caused by it) as described in paragraph 280B below. Further particulars of the Recognised Areas are provided at Appendix VI. 257H Further, in recognition of the ongoing effects of the damage on victims, those who were eligible to claim loss of profits under the Repactuation Agreement were offered compensation calculated to cover lost profits for a period of 125 months after the Collapse (i.e. until March 2026). 257I The Repactuation Agreement was negotiated by the then Chief Legal, Governance and External Affairs Officer (Ms Caroline Cox) and the CEO of the Defendants (Mr Mike Henry). It was executed and/or approved by Mr Henry. The involvement of Ms Cox and Mr Henry in the negotiation and approval of the Repactuation Agreement is relied upon by the Claimants to demonstrate that: 257I.1 notwithstanding the fact that BHP Brasil was named as the BHP group party to the Repactuation Agreement, the Defendants were the real counterparties to the negotiations held with the Brazilian public authorities, Federal and State entities, and Vale; and 257I.2 the obligations accepted under the Repactuation Agreement on behalf of BHP Brasil are obligations that will ultimately be funded (at least indirectly) by the Defendants foregoing dividends that they would otherwise derive through BHP Brasil’s joint ownership of Samarco.”
[10]The essence of the claimants’ case in this part of the new pleading is as follows: i) On 25 October 2024 a settlement agreement (“the Reparations Agreement”) was entered into by State bodies and others, including Samarco, Vale and BHP Brasil, and ratified by the STF on 6 November 2024, pursuant to which those affected by the collapse of the dam could claim a substantially improved package of reparations under a new compensation scheme, including loss of profits through to 2026. ii) The Reparations Agreement does not preclude those affected by the dam collapse from pursuing claims through legal proceedings; it is said that many of the claimants in these proceedings are not entitled to claim compensation under the terms of the Reparations Agreement. iii) Clause 1 of the Reparations Agreement states that the aim of the compensation scheme is to provide full socio-environmental and socio-economic restoration. The geographical areas subject to the remedial and compensatory measures are identified in the Reparations Agreement as including the municipalities referred to in the TTAC, CIF resolutions (part of the Renova scheme) and others, described in the pleading as “the Recognised Areas”. iv) It is implied or inferred from(a) the Reparations Agreement,(b) Article 422 of the Civil Code (duty of good faith) and/or(c) Article 412, sole paragraph, of the Brazilian Code of Civil Procedure (reliance on a private document by a party amounts to admission in respect of all contents of the document), that the Recognised Areas (at a minimum) suffered some loss and damage as a result of the dam collapse. v) The defendants were involved in the negotiations for the Reparations Agreement and/or were the real counterparties to those negotiations. Therefore they are deemed to have acknowledged that the Recognised Areas suffered some loss and damage as a result of the dam collapse. vi) Further, the Reparations Agreement is relevant to the reversal of the burden of proof under Brazilian Law in respect of loss and damage sustained by the Recognised Areas as a result of the dam collapse. vii) Further particulars of the Recognised Areas are set out in a new Appendix VI to the Master POC.[11]Appendix VI is not limited to the Recognised Areas referred to in the Reparations Agreement but extends to other areas recognised as affected by the collapse under various compensation schemes in Brazil. The claimants plead that they will rely on the Reparations Agreement, TTAC, CIF resolutions, technical notes and reports, and judicial or other public body decisions, as recognition of areas affected adversely by the collapse of the dam and in support of their claims that they have suffered recoverable losses.[12]Specifically, it is pleaded at paragraph 1.1 of Appendix VI that:
“Many areas were identified (either expressly or by implication) in the agreements negotiated between parties to the relevant Brazilian proceedings, in particular the TTAC and/or the Repactuation Agreement. BHP Brasil’s agreement in this respect was authorised by, and agreed to, by BHP UK and/or BHP Australia, despite neither BHP UK nor BHP Australia being named parties to the relevant document(s). The Claimants will rely on the identification of areas as affected in such agreements, without prejudice to their case that further areas were also affected by the Collapse. By virtue of the Defendants’ participation in the negotiation of and/or procurement of such agreements and/or being the true counterparties thereto (and subject to the terms of paragraph 257G above), the Claimants will contend that the Defendants are precluded as a matter of Brazilian law from contesting herein that those areas were areas adversely affected by the Collapse. Further or alternatively (and subject to the terms of paragraph 257G above) in so far as the issue is one for the lex fori, the Claimants will contend that the Defendants were privy to the negotiation, execution and/or performance of the TTAC and/or Repactuation Agreement and are therefore precluded by English law principles of estoppel or abuse of process from contesting herein that the said areas were areas adversely affected by the Collapse.”
[13]Paragraph 1.3 of Appendix VI states that the materials relied on in the Appendix are merely the starting point, rather than the extent of the claimants’ case as to the areas affected by the collapse of the dam:
“Neither (i) the agreements negotiated in Brazil such as the TTAC (nor, later, the Repactuation Agreement), nor (ii) the additional reports and decisions by relevant public entities and/or decision-making bodies which identify further affected areas, set (or purport to set) a geographical restriction as to the locations where recoverable losses were (or continue to be) suffered as a result of the Collapse. Nor do they set a restriction to the type and/or extent of losses in fact suffered by the Claimants in or reliant upon said locations. In the premises, the Claimants will rely on such instances of identification and/or recognition as a factual starting point, without restriction, in order to establish the extent of the areas affected by the Collapse and the extent of the losses suffered as a result.”
[14]The legal principles applicable on an application to amend are not in dispute. Once a statement of case has been served, a party may amend it only with the consent of the other party or with permission of the court: CPR 17.1.[15]CPR 17.3 provides that the court has a general discretion to allow an amendment to a statement of case. Where there is no issue of lateness or adverse impact on the trial date, the principles can be summarised as follows: i) When deciding whether to grant permission to amend, the court must exercise its discretion having regard to the overriding objective in CPR 1.1. ii) Applications always involve the court striking a balance between injustice to the applicant if the amendment is refused, and injustice to the opposing party and other litigants in general, if the amendment is permitted. iii) Although the court will have regard to the desirability of determining the real dispute between the parties, it must also deal with the case justly and at proportionate cost, which includes (amongst other things) saving expense, ensuring that the case is dealt with expeditiously and fairly, and allocating to it no more than a fair share of the court’s limited resources. iv) A proposed amendment must be arguable, carry a degree of conviction, be coherent, properly particularised and supported by evidence that establishes a factual basis for the allegation: see Kawasaki Kisen Kaisha Ltd v James Kemball Ltd [2021] EWCA Civ 33 at [18]. v) An application to amend will be refused if it is clear that the proposed amendment has no real prospect of success. The court should avoid conducting a mini-trial and factual averments should be accepted unless, exceptionally, they are demonstrably untrue or unsupportable: Okpabi v Royal Dutch Shell Plc [2021] UKSC 3 at [107].[16]Mr Choo Choy KC submits on behalf of the claimants that the amendments should be permitted. They are coherent, properly arguable, and raise matters of Brazilian Law on which the court could not, and should not, reach a concluded view on a summary basis.[17]Ms Fatima KC submits on behalf of the defendants that permission should be refused for draft paragraphs 257B to 257I and Appendix VI. The claimants have not discharged their burden of showing that those amendments are coherent and have a real prospect of success. If permitted, the amendments would add significant time and costs to the parties’ preparations for the Second Stage trial, without any utility.[18]Having considered the proposed amendments, the court grants permission for the unopposed amendments together with draft paragraphs 257B, C, D, E, F and H. Those paragraphs provide an overview of the Reparations Agreement and rely on specific provisions of the same, in respect of which the claimants have set out their interpretation. The defendants can respond to those matters, including any disputed interpretation of the provisions, in their pleaded defence.[19]The court refuses permission for draft paragraphs 257G and I, and Appendix VI for the following reasons.[20]Firstly, the implied or inferred deduction that the claimants invite the court to make is not sufficiently articulated to produce a coherent pleading. Reference to the principle of good faith in entering into and performing contracts does not, without any further explanation, justify the leap, from the stated basis on which compensation claims will be considered under the Reparations Agreement, to deemed recognition of the affected areas as binding on the defendants who were not parties to the same. Likewise, reference to Article 412, sole paragraph, of the Brazilian Code of Civil Procedure does not advance the case that the contents of the Reparations Agreement is binding on the defendants who were not parties to the same.[21]Secondly, clause 146 of the Reparations Agreement presents a complete answer to the plea that the defendants are precluded from disputing the Recognised Areas as sustaining environmental impact and damage as a result of the dam collapse. Clause 146 provides:
“Without prejudice to the faithful fulfillment of the actions provided for in this AGREEMENT, its signature and assumption of the obligations set forth herein do not imply the acknowledgment by the RENOVA FOUNDATION, the PROMISEE, the SHAREHOLDERS, their RELATED PARTIES and their representatives/employees, of negligence or liability in the civil, administrative or criminal spheres, nor may it be interpreted as recognition of liability, in whole or in part, by the DAM FAILURE. Sole Paragraph. The terms and obligations defined in this AGREEMENT aim at the resolution of technical and legal controversies between the SIGNATORIES, and do not represent acknowledgment, on the part of the PROMISEE, the SHAREHOLDERS or their RELATED PARTIES and/or the RENOVA FOUNDATION, of a causation between the DAM FAILURE and allegations of damages and impacts addressed herein, including allegations of chemical impacts resulting from the deposition of tailings in the Doce River Basin.” [Emphasis added]
[22]On a reading of the clear words used, the pleaded averment is not plausible. In those circumstances, it is not sufficient for the claimants simply to assert that under Brazilian Law the words do not have their ordinary and natural meaning without any supporting evidence. On an application to amend to plead a foreign point of law, which must be proved as a matter of fact, it is incumbent on the claimants to produce some legal expert opinion or other materials to persuade the court that there is a real prospect of success. None has been provided.[23]Thirdly, there is no adequate pleading or evidence to support the claimants’ assertion that, although the defendants were not signatories to the Reparations Agreement or named in it, by virtue of their participation in the negotiation of and/or procurement of that (and other agreements) and/or being the true counterparties thereto, they are precluded as a matter of Brazilian law from contesting that the Recognised Areas were adversely affected by the dam collapse. There is no identification of the relevant Brazilian Law principles, no explanation as to their application to the facts of this case and no expert opinion in support, even on a preliminary basis.[24]Fourthly, the pleaded reliance on an unidentified species of estoppel in paragraph 1.1 of Appendix VI, without any attempt to link the facts of the case to the required elements of the alleged estoppel, has no real prospect of success, as accepted by the claimants in oral submissions.[25]Fifthly, the pleaded reliance on abuse of process in paragraph 1.1 of Appendix VI, without any attempt to link the facts of the case to the required elements of the alleged abuse of process, has no prospect of success. Mr Choo Choy made a valiant attempt to persuade the court that the rule in Henderson v Henderson applied, as expounded by Lord Bingham in Johnson v Gore Wood & Co [2002] 2 A.C. 1, at 30H–31F:
“The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter … The bringing of a claim or the raising of a defence in later proceedings, may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all. It is, however, wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing 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.”
[26]Although not pleaded, in oral submissions it was said that the claimants seek to rely on all of the proceedings in Brazil between the various authorities, Samarco, Renova and BHP Brasil. Even if properly particularised, which it is not, there are two insuperable difficulties with such a case:(i) those proceedings were stayed, discontinued or settled, so that the impact of the dam collapse was not adjudicated upon (and in many cases not pleaded out by the parties); and(ii) the defendants were not parties to those proceedings. There is no real prospect of demonstrating to the court in these proceedings that it is an abuse of process for the defendants to try to “re-litigate” unspecified points that it is said should have been raised by others in unspecified Brazilian proceedings.[27]Sixthly, the alleged binding effect of the Recognised Areas has no utility in these proceedings because it is pleaded at such a very high level of generality; it is not linked to specific adverse impacts on identified individuals or groups of claimants. The plea in draft paragraph 257G is that:
“those areas (at a minimum) suffered some loss and damage as a result of the Collapse”
. It is common ground that the collapse of the dam caused widespread damage and pollution. The claimants have pleaded a detailed case as to the overarching consequences of the dam collapse in Section C5 of the amended Master POC. The defendants have yet to plead to the same but they may accept some, or most, of that part of the pleaded case. If admitted, there is no need for any investigation into the underlying reports; if disputed, investigations can be focussed on those areas of dispute. It is open to the claimants to rely on the technical reports and notes referred to in the settlement agreements in support of their position at trial. But the real issue is not whether any areas suffered some loss and damage as a result of the dam collapse; it is whether any of the 600,000 claimants suffered recoverable loss and damage as a result of the dam collapse.[28]It is said by the claimants that the binding effect of the Recognised Areas is relevant to the existing pleaded case as to the reversal of the burden of proof but in oral submissions it was accepted that the burden of proof point would stand or fall independently of the proposed amendments.[29]Finally, the defendants’ concern as to the impact of the opposed amendments is well made. I consider that an investigation into the defendants’ participation in negotiations of various settlements in Brazil, including the Reparations Agreement, with the inevitable disclosure, factual witness evidence and Brazilian law evidence, would be a disproportionate waste of time, effort and costs. Further, it would be an unhelpful distraction from the real and very substantial issues to be determined in the Second Stage trial, namely, causation, loss and damage in respect of the lead claimants.[30]For the above reasons, the draft amendments the subject of the application are permitted, save for the proposed amendments set out in paragraph 257G, paragraph 257I and Appendix VI, which amendments are refused.

Costs of the amendments

[31]The parties have agreed that the costs of and occasioned by the amendments should be costs in the case, save for the amendments to Appendix III. Appendix III contains particulars of the claims by the indigenous and Quilombola peoples. Draft amendments were served in October 2024 and revised on 30 May 2025. I accept the submission of Ms Windle KC that no distinction can be drawn between the original and revised amendments for the purpose of costs. The claimants should bear the costs of and occasioned by the amendments to Appendix III, the usual rule where a party seeks to amend.

Consequential directions

[32]The claimants propose that the defendants should serve their responsive Re-Re-Re-Re-Amended Defence by 31 July 2025. The defendants’ position is that the amendments are very substantial and they need until 31 October 2025.[33]The period proposed by the claimants is insufficient. Having served hundreds of pages of amendments, many as recently as 30 May, it is unreasonable to expect the defendants to plead to them within a matter of weeks. The court recognises that there is much publicly available information on the amended issues and the claimants have provided the defendants with a list of key documents relied on, and subsequently copies of those documents. The claimants have now further agreed to provide a mark-up of their pleading cross-referencing those documents within two weeks of the CMC. Undoubtedly that will assist the process but, even without the need to respond to Appendix VI, the task of investigating and pleading to the voluminous pleadings in Appendix III and Section C5 is a substantial task.[34]Having regard to the above points, the timetable for pleadings shall be as follows: i) The claimants shall file and serve the Re-Re-Re-Re-Amended Master POC in final form by 4pm on 14 July 2025. ii) The defendants shall file and serve the Re-Re-Re-Re-Amended Defence by 4pm on 3 October 2025. iii) The claimants shall file and serve any Re-Re-Re-Re-Amended Reply by 4pm on 31 October 2025. iv) The defendants shall file and serve any Re-Re-Amended Rejoinder by 4pm on 14 November 2025.

Directions for Second Stage trial

[35]There is a large measure of agreement between the parties in principle as to the nature and scope of the Second Stage trial. It is agreed that the Second Stage trial should include the trial of a number of lead cases, to be agreed by the parties and approved or, in the event of any dispute, determined by the court at the next CMC. It is also agreed that the Second Stage trial should determine(i) issues common to all claimants or claimants within a particular cohort, which will be decided by the court in the lead cases and will be binding on the parties; and(ii) issues that are representative of the claims brought by the claimant cohorts that will be decided by the court in respect of the lead claimants to establish guidance or benchmarks for the other claims in respect of recoverable losses and quantum issues.[36]The claimants have produced a draft list of issues and selection criteria for the lead claimants, with a proposal that each side should exchange the names of 500 potential individual lead claimants, a questionnaire should be sent to the potential pool of 1,000 and the responses should be used to select the lead individual cases for trial. Initially, the claimants suggested that 50 lead cases could be tried at the Second Stage trial but in oral submissions it was accepted that perhaps 15-20 lead cases might be more realistic.[37]The defendants agree in principle with the approach but submit that it would be premature for the court to make directions at this stage regarding either the role or purpose of the lead claimants for the Second Stage trial, or the criteria and process for their selection. Their proposal is that the parties should continue to correspond and seek to agree or narrow the issues and directions for the Second Stage trial, with a view to filing agreed or competing proposals by 14 November 2025. Any disputes can then be resolved by the court at a CMC in December 2025.[38]The court considers that the list of issues and selection criteria can be no more than provisional at this stage, at least until the defendants have served their amended pleading. The court is also cognisant of the gaps and uncertainties in the APOCs provided by some of the claimants. However, the parties have more information than is often the case in group actions at the lead claimant selection stage and the process must start now to ensure that progress is made before the CMC in December 2025.[39]Accordingly, the court will order as follows: i) The claimants shall serve their list of 500 potential individual lead claimants (identifying the key criterion on which each claimant’s selection was based) and draft questionnaires by 4 August 2025. ii) The defendants shall serve their list of 500 potential individual lead claimants (identifying the key criterion on which each claimant’s selection was based) and any revisions proposed to the claimants’ draft questionnaires by 3 October 2025. iii) The parties shall agree the questionnaires to be sent out to the pool of 1,000 claimants by 31 October 2025; any dispute as to the form and content of the questionnaires shall be referred to the court by 31 October 2025 for determination on the papers. iv) The parties shall seek to agree the list of issues to be determined, selection criteria for all categories of lead claimants and draft directions for the Second Stage trial, by no later than 14 November 2025. v) If the parties are unable to agree proposals for the selection and use of lead claimants, a draft list of issues and draft directions (including for disclosure, factual evidence and expert evidence) in respect of the Second-Stage trial, the parties shall file and serve draft directions orders and lists of issues, and any accompanying witness statements, setting out their respective proposals by no later than 14 November 2025. vi) The parties shall liaise with the listing office to fix a further CMC in December 2025 with an agreed time estimate.

Disclosure application

[40]The parties have reached agreement in principle on this application and agreed that the application should be adjourned with liberty to restore.

Security for costs / funding information application

[41]On 24 April 2025 the defendants issued an application for an order that the claimants provide security for costs and/or third party funding information. The sum of the security sought is £23,417,072, representing 80% of the defendants’ incurred and estimated costs in respect of procedural steps required to be taken in respect of the Second Stage trial up to 31 December 2025.[42]The application is opposed by the claimants on the basis that it is premature, pending the Judgment on the First Stage trial and directions in the Second Stage trial.[43]Witness statements have been filed in respect of the application: i) on behalf of the defendants, the third witness statement of Ms Megan Sandler, solicitor and partner in Slaughter and May, dated 24 April 2025, and her fifth statement dated 13 June 2025; and ii) on behalf of the claimants, the seventh witness statement of Mr Christopher Neill, solicitor and partner in Pogust Goodhead, dated 23 May 2025.[44]CPR 25.26 provides that a defendant to any claim may apply for security for their costs of the proceedings. CPR 25.27 provides that:
“The court may make an order for security for costs if – (a) it is satisfied, having regard to all the circumstances of the case, that it is just to make such an order; and (b) … one or more of the following conditions apply - (i) the claimant is resident out of the jurisdiction; (ii) the claimant is a company or other body (whether incorporated inside or outside England and Wales) and there is reason to believe that it will be unable to pay the defendant's costs if ordered to do so …” (i) the claimant is resident out of the jurisdiction; (ii) the claimant is a company or other body (whether incorporated inside or outside England and Wales) and there is reason to believe that it will be unable to pay the defendant's costs if ordered to do so …”
[45]Thus, the court must consider the following matters: i) whether there is reason to believe that the claimants will be unable to pay the defendants’ costs if ordered to do so (“threshold test”); and ii) having regard to all the circumstances of the case, whether it is just to make an order for security for costs (“exercise of discretion”).[46]The individual claimants are all residents of Brazil and the corporate or other entities would be unable to pay the costs if ordered to do so. In her third witness statement Ms Sandler has explained the difficulties of enforcing any costs award against the claimants in Brazil. In those circumstances, it is not disputed that the threshold test is satisfied; indeed in advance of the First Stage trial, the claimants obtained ATE insurance in the sum of £58 million to provide reassurance to the defendants that adverse costs liabilities could be satisfied. In those circumstances, Mr Sloboda KC, on behalf of the defendants, submits that the court should exercise its discretion and order security.[47]I have considered whether it would be just in all the circumstances to order security at this stage but decide that the application should be adjourned to the December 2025 CMC for the following reasons.[48]First, the scope and timing of the Second Stage trial is not yet clear. Although the court has made preliminary directions in this judgment, the full directions and timetable for any Second Stage trial have not been identified or discussed by the parties; it is clear from the CMC hearing that the parties have not advanced any firm proposals as to the factual and expert evidence that will be deployed at the Second Stage trial. As a result, the parties are not in a position to provide even preliminary estimates of costs for the same.[49]Second, by the December CMC, it is likely that the outcome of the First Stage trial will be known and the court will be in a position to assess the case in the round.[50]Third, the defendants have applied for, and the claimants have agreed to, costs budgeting and management orders, to be considered at a costs management hearing after the December CMC. Any costs management order will be made after the CMC, probably in January 2026, but the parties must exchange their initial costs budgets prior to the December CMC so that the court has oversight when ordering the directions for trial.[51]Fourth, the claimants have indicated that they would need time to investigate and obtain ATE insurance for the Second Stage trial. Although I agree with Mr Sloboda that it is unfortunate that the claimants have not been proactive in addressing this question, including alternative means of security by bank bond or payment into court, I accept that such exercise is likely to be easier once the scope of any trial has been agreed or determined by the court.[52]Finally, I recognise that the defendants are anxious that they are being required to take procedural steps, including amendments to their pleadings, in the absence of what they consider to be adequate security for their costs. However, that must be balanced against the fact that the claimants do have substantial ATE insurance in place and the costs that will be incurred in the coming months are relatively modest in comparison to the overall costs to date. In all the circumstances of the case, the just course of action is to consider the application for security at the next CMC.[53]However, the court will order that by 4pm on 25 July 2025 the claimants shall disclose to the defendants the identities, addresses and contact details of all individuals, companies or other entities that have provided funding to the claimants and/or for the pursuit of the claimants’ claims in these proceedings. That will ensure that all relevant information is available well in advance of the next CMC when the issue of security is considered.

Litigation friend applications

[54]There is no dispute as to the claimants’ applications:(a) for continuation of Ms Kässmayer’s appointment as litigation friend for the child claimants; and(b) for continuation of Ms Garrido’s appointment as litigation friend for the protected party claimants.

Costs management hearing

[55]The parties have agreed that there should be a costs management hearing and that it should follow the CMC in December 2025. The parties shall liaise with the listing office to fix a date and time estimate for the same.[56]As indicated above, the parties should exchange initial costs budgets in advance of the December CMC so that the court can have regard to them when giving directions. Following that hearing, the parties will have an opportunity to revise their budgets to reflect the orders made at the CMC.[57]The parties are invited to draw up and agree the order.