Claimants seek a record interim costs payment following the ruling on liability for the dam collapse
Claims firm Pogust Goodhead has applied for an interim costs payment of £113.5 million in the High Court litigation arising from the collapse of the Fundão Dam in Brazil.
The application was heard during a day-long hearing before Mrs Justice O’Farrell, alongside an application by the defendant, mining group BHP, for permission to appeal an earlier ruling on liability.
For the claimants, Alain Choo Choy KC told the court that the stage one judgment handed down in November found BHP strictly liable as a polluter for damage caused by the 2015 dam collapse. He said the defendants were required to pay the costs that had been incurred in establishing liability, even though the claimants themselves had not paid those costs upfront.
Choo Choy said the scale of funding required to pursue the claim had been substantial and remained ongoing. He told the court that no litigation funder had unlimited resources and that the claimants had been required to secure very costly funding in order to bring proceedings against a wealthy opponent that had vigorously contested the case. He added that the claimants were highly likely to recover substantial damages.
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The claimants estimate their stage one costs at at least £189,124,636.42. They are seeking a payment on account of 60 percent of that figure, amounting to approximately £113.5 million.
Choo Choy acknowledged the size of the figure but said it was justified given the scale of the work required to avoid the risk of the claim being struck out. He submitted that it was appropriate to use the £189 million figure as the starting point when assessing an interim payment.
For BHP, Nicholas Sloboda KC argued that any interim payment must be reasonable and proportionate. He said the application represented the highest costs claim he was aware of in seeking recovery through the courts and was larger than most substantive claims heard in England and Wales.
Sloboda said the claimants were seeking around £130 million as an interim payment and criticised what he described as a lack of detail in the costs presented.
In written submissions, BHP argued that the court should defer deciding the costs order until at least after the second stage of the proceedings, when the overall outcome of the litigation would be clearer. It said there would be no prejudice in doing so and argued that the claimants themselves had not incurred the costs, which had instead been funded by Pogust Goodhead’s commercial backers.
BHP also sought permission to appeal the liability judgment, arguing that it failed to address several material issues raised in its submissions.
The court reserved judgment on both the costs application and the request for permission to appeal.