By London Mining Network researcher Paul Robson

A Barmecide Feast is a pretend or illusory act of generosity; and the beneficiary is supposed to be grateful for the fake generosity. It comes from a story in The Arabian Nights in which a prince invites a poor, starving man to a sumptuous feast, at which all the dishes are imaginary and the poor man has to play along and pretend that he is being treated well.

You have probably never heard of a Barmecide Feast, but it is referred to by the Hon. Mr Justice Turner in the judgement issued on 9th November 2020 of the case in the UK High Court of Justice Technology and Construction Court in which the District Council of Mariana in Brazil (and other Brazilian claimants) sought leave to pursue a claim in the UK courts from the BHP Group for damages caused by the collapse of the Fundão tailings dam on 5th November 2015.

145. It must follow that, having adjudged these claims to amount to an abuse of the process of the court, I have further determined that the only proper procedural consequence of this is that they should be struck out. In reaching this view, I cannot emphasise too strongly that I am not in any way whatsoever seeking to trivialise the hardships suffered by the many victims of the collapse of the dam. But what they need and deserve is a mechanism by which to obtain a fair and just outcome. I am entirely satisfied that this would not be served up at the table of an English Barmecide feast.

Maybe UK judges know what a Barmecide Feast is because they have to know to get through the rigorous judging examinations, or maybe it is a phrase that crops up frequently in court because poor people getting illusory compensation from the judicial system is a common occurrence. The rest of us are expected to know what Justice Turner is alluding to.

Justice Turner’s ruling was that the claimants could not pursue a claim in the UK courts against BHP Group. The main reasons for this are the practical difficulties of managing the claims in the UK and the fact that there could be cross-contamination with ongoing court cases in Brazil.

There would be practical difficulties of the case going forward in the UK because there are a large number of different claimants who have been affected differently by the effects of the collapse of the Fundão Dam, because of the fact that many of the relevant documents would be in Portuguese and a court in the UK would have to understand many aspects of Brazilian law. On the question of cross-contamination with ongoing court cases in Brazil, the Judge says:-

78. The present case is not merely unusual but unique in a number of respects. One of its most distinctive features is that, if it were allowed to proceed, the action in England would involve closely related group claims moving forward in parallel in two different jurisdictions with many of the same claimants in each seeking identical remedies in England and Brazil concurrently.

92. It can safely be predicted that this unremitting cross-contamination of proceedings would lead to utter chaos in the conduct of litigation in both jurisdictions the procedural position of each of which would be in a near constant state of flux. In particular, the utility of the selection of lead cases would be seriously imperilled by the risk that the issues to which they were directed would, as the litigation progressed, be undermined, made redundant or transmogrified by developments in Brazil.

93. The task facing the managing judge in England would, I predict, be akin to trying to build a house of cards in a wind tunnel.

The ruling does not say that there the claimants do not deserve fair and just compensation, and it does not say that they are going to get it through the Brazilian judicial system; in fact it says that some of the judicial processes deliver “rough justice”. The judgement appears to say that it would not be appropriate to pursue the claims through the UK judicial system and the claimants will have to continue to pursue their claims in Brazil.

The argument that there are ongoing judicial proceedings in Brazil refers to proceedings assigned to the 12th Federal Court of the State of Minas Gerais under the management of Judge Mario de Paula Franco Jr, (who is referred to as “Judge Mario” in Judge Taylor’s statement) and to a Civil Public Action (CPA) for 155 Billion Brazilian Reais. These are however fairly recent initiatives, as Judge Taylor admits; until a year ago there was little progress with claims for compensation in the courts n Brazil. Many Brazilians believe that these initiatives would not have come about if the case had not been taken to the UK. The proceedings under Judge Mario are controversial in Brazil. According to an article in “Insurance Journal” of 26th October 2020, Brazilian federal prosecutors have criticised Judge Mario for accepting limits on the compensation nine claimants and then extending these limits to all victims in Baixo Guandu in the state of Espirito Santo.

“Moral damages” claims were limited to 10,000 Brazilian Reais (1,780 US Dollars) which is very much less than the monetary losses suffered by the claimants due to the inability to fish or farm after the collapse of the Fundão Dam. The Federal Prosecutors said the judge ruled under seal in the case, without the proper participation of the prosecution office, despite requests for access. The document filed by Federal Prosecutors suggests a link between this process and the court case in the UK.

So although Judge Taylor in the UK perceives the procedural innovations of Judge Mario to improve and streamline the compensation process as evidence that lessons are being learnt in Brazil and improvements are being implemented, and that the deficiencies of previous compensation processes were now only of historical interest, this is not necessarily the perception in Brazil.

The legal battles about compensation for the damages resulting from the collapse of the Fundão tailings dam five years ago now return to Brazil. Judge Taylor concluded that:-

129. Regardless of the scale of the problems in Brazil, the solutions are not to be found in England where, as I have already concluded, the further progress of proceedings would make matters worse not better for all concerned.

The problem as perceived by the claimants, those affected by the pollution of the Rio Doce, is that they fear that they will be served a Barmecide Feast in Brazil and will be expected to be grateful. They are very aware of the scale of problems in Brazil. The collapse of the Fundão tailings dam exposed the fragility of the system for regulation of mining companies in Brazil, and the fragility of the emergency planning system for disasters of this type. Questions of compensation and rehabilitation then spilled over into the judicial field and exposed the fragility of the Brazilian judicial system in dealing with the aftermath of disastersi. This has not changed.

i Délton Winter de Carvalho, The Ore Tailings Dam Rupture Disaster in Marina, Brazil 2015: What We Have to Learn from Anthropogenic Disasters, 59 Nat. Resources J. 281 (2019).