Justice O’Farrell upheld ruling that found mining giant liable for Brazil’s worst environmental disaster
London, (19/01/2026) – Pogust Goodhead welcomes the decision of Mrs Justice O’Farrell DBE refusing BHP’s application for permission to appeal the High Court’s judgment on liability in the Mariana disaster litigation. The ruling marks a major step forward in the pursuit of justice for over 620,000 Brazilian claimants affected by the worst environmental disaster in the country’s history.
The refusal leaves the High Court’s findings undisturbed at first instance: that BHP is liable under Brazilian law for its role in the catastrophic collapse of the Fundão dam in 2015. In a landmark ruling handed down last November, the Court found the collapse was caused by BHP’s negligence, imprudence and/or lack of skill, confirmed that all claimants are in time and stated that municipalities can pursue their claims in England.
In today’s ruling, following the consequentials hearing held last December, the court concluded that BHP’s proposed grounds of appeal have “no real prospect of success”.
In her judgment, Mrs Justice O’Farrell stated:
“In summary, despite the clear and careful submissions of Ms Fatima KC, leading counsel for the defendants, the appeal has no real prospect of success. There is no other compelling reason for the appeal to be heard. Although the Judgment may be of interest to other parties in other jurisdictions, it is a decision on issues of Brazilian law established as fact in this jurisdiction, together with factual and expert evidence. For the above reasons, permission to appeal is refused”.
At the December hearing, the claimants – represented by Pogust Goodhead – argued that BHP’s application was an attempt to overturn detailed findings of fact reached after an extensive five-month trial, by recasting its disagreement with the outcome as alleged procedural flaws. The claimants submitted that appellate courts do not re-try factual findings and that BHP’s approach was, in substance, an attempt to secure a retrial.
Today’s judgment confirmed that the liability judgment involved findings of Brazilian law as fact, based on extensive expert and factual evidence, and rejected the defendants’ arguments, who now have 28 days to apply to the Court of Appeal.
Jonathan Wheeler, Partner at Pogust Goodhead and lead of the Mariana litigation, said:
“This is a major step forward. Today’s decision reinforces the strength and robustness of the High Court’s findings and brings hundreds of thousands of claimants a step closer to redress for the immense harm they have suffered.”
“BHP’s application for permission to appeal shows it continues to treat this as a case to be managed, not a humanitarian and environmental disaster that demands a just outcome. Every further procedural manoeuvre brings more delay, more cost and more harm for people who have already waited more than a decade for proper compensation.”
Claimants’ reaction: “important victory”
Mônica dos Santos, a resident of Bento Rodrigues (a district in Mariana) whose house was buried by the avalanche of tailings, commented:
“This is an important victory. Ten years have passed since the crime, and more than 80 residents of Bento Rodrigues have died without receiving their new homes. Hundreds of us have not received fair compensation for what we have been through. It is unacceptable that, after so much suffering and so many lives interrupted, the company is still trying to delay the process to escape its responsibility.”
Legal costs
The Court confirmed that the claimants were the successful party and ordered the defendants to pay 90% of the claimants’ Stage 1 Trial costs, subject to detailed assessment, and to make a £43 million payment on account. The Court also made clear that the order relates to Stage 1 Trial costs only; broader case costs will depend on the ultimate outcome of the proceedings.
The costs award reflects the scale and complexity of the Mariana case and the way PG has conducted this litigation for more than seven years on a no-win, no-fee basis – funding an unprecedented claimant cohort and extensive client-facing infrastructure in Brazil without charging clients. This recovery is separate from any damages award and does not reduce, replace or affect the compensation clients may ultimately receive.
Note to the editor
- The liability trial took place between October 2024 and March 2025 and the landmark judgment was handed down in November 2025.
- The Stage 1 judgment established that BHP bears responsibility for the disaster under both strict liability and fault-based principles, rejecting key defences advanced by the mining company.
- These findings now form the foundation for the next stages of the litigation, which address issues of causation, loss, and compensation for affected individuals, communities, businesses, and municipalities. The Stage 2 trial is currently scheduled to begin in October 2026.
- The Judge held that a reasonable payment on account is £43 million. Although the claimants sought £113.5 million (60% of their claimed £189 million), the Judge excluded certain categories of costs as not strictly related to the Stage 1 trial outcome, such as walk-in and call centre costs; Brazilian legal team sign-up and advice work; funding and insurance arrangements.
- After applying these exclusions and a 10% reduction, the Court ordered a payment on account of £43 million.
- As the Judge limited the scope of the order to Stage 1 Trial costs only, broader costs (including costs incurred in preparation of pleadings and general case development) remain dependent on the ultimate outcome of the proceedings.
The parties agreed that the payment of the £43 million should be stayed pending any application for permission to appeal the Stage 1 liability judgment. If permission is refused in the Court of Appeal, or after any appeal is determined, payment must be made within 30 days.
