The Dekagram: 1st December 2025

Now that Advent is upon us, and the most junior members of the team have been sent up into chambers’ attic to retrieve the Dekabaubles and tinsel whilst the silks undertake the difficult task of selecting the Christmas Day canapés we’ve taken a moment to reflect on the fact that we haven’t changed our Chambers Cocktail for some considerable time. The first ever Chambers Cocktail was nominated by Nathaniel Martindale of Leigh Day – it was the simple but effective French 75, a concoction which plays to our strengths, comprised of four individually splendid elements working in perfect harmony to elevate the whole. We’ve had others since, and now it’s time for another change. The lucky reader who nominates the winning beverage – either alcoholic or non-alcoholic – will receive a small token of our thanks.

In the meantime, and whilst readying ourselves for the Taste Test to come, Anirudh Mandagere brings you a very important limitation lesson from the behemoth Fandao Dam litigation and Tom Collins has depressing news for our many  jet setting readers.

What travel lawyers can learn from the Fundão Dam Litigation: (Muncipio de Mariana v BHP Group (UK) Limited [2025] EWHC 3001 (TCC))

With a pleaded value of £36 billion, the claim of Muncipio de Mariana v BHP Group (UK) Limited [2005] EWHC 3001 (TCC) stands as one of the largest civil claims ever brought in England and Wales. It involves over 600,000 potential claimants who seek compensation in respect of losses suffered as a result of the bursting of the Fundao Dam in south-east Brazil. So complex was the claim that it was initially struck out on the basis that it was “irredeemably unmanageable”.

Notwithstanding the value and public importance of the claim, Muncipio de Mariana offers lessons for all litigator in travel law. This article will explore the facts, judgment and lessons for travel lawyers arising out of the judgment.

Facts

On 5^th November 2015 Brazil suffered its worst ever environmental disaster when the Fundão Dam collapsed, releasing around 40 million cubic metres of tailings from iron ore mining. The collapse and flood killed 19 people, destroyed entire villages, and had a widespread impact on numerous individuals and communities. The dam was owned by and operated by Samarco Mineração SA (“Samarco”). The Defendants were the ultimate parent companies of BHP Brasil Ltd which was a 50% shareholder in Samarco.

Judgment

Factual Findings

The Claimants succeeded in the first stage trial on liability. In summary, the factual findings identified that the collapse was foreseeable. The dam should not have been raised without a proper analysis of stability and the attendant risks. Its precariousness and the high risk of liquefaction failure could have been predicted. Accordingly, the Defendant was strictly liable under the Brazilian Environmental Law (Law 6.938/1981) as “polluters” and liable under the Civil Code (Law 10.406/2002) in that (a) they disregarded warnings and failed to address known risks, (b) their actions resulted in extensive environmental and economic damage and (c) there was a causal link between the two.

Of particular interest to travel lawyers was the court’s treatment of limitation.

Limitation Issue

 Article 15(h) of the Rome II Regulation provides that law applicable to non-contractual obligation governs “the manner in which an obligation may be extinguished and rules of prescription and limitation, including rules relating to the commencement, interruption and suspension of a period of prescription or limitation”. Pursuant to Article 4(1) of the Rome II Regulation, the law applicable to non-contractual obligations shall be “the law of the country in which the damage occurs irrespective of the country in which the event giving rise to the damage occurred”. Therefore, the law applicable to the limitation period was Brazilian law.

However, one of the disputes between the parties was whether the claim form issued and served by the claimants contained sufficient details to stop time running for purpose of the rules of prescription. The issues in dispute were as follows:

1. Claimant’s Case. The Brazilian rules of prescription provides that the service of the claim form is the key procedural required to stop time running. However, what amounts to proper service was a question of procedural law. Such matters are governed by the law of the forum (Article 1(3) of Rome II), and are subject to requirements of the English Civil Procedure Rules.
2. Defendant’s Case. Article 15 set out a non-exhaustive number of matters which must be determined by the law applicable to non-contractual obligations. It therefore could not constitute matters of procedure under Article 1(3) of Rome II. Brazilian law specifies that certain matters be included in a statement of claim in order that it is validly commenced and stop time. It was a substantive pre-requisite to the interruption of a period of limitation and fell within Article 15(h).

Judgment on Limitation

Mrs. Justice O’Farrell ruled in favour of the Claimants on limitation for the following reasons:

A distinction ought to be drawn between the substantive rules of prescription (which were governed by the applicable law) and the procedural rules for effective valid issue and service of a claim in England and Wales. In Vilca v Xstrata [2018] EWHC 27 (QB) and Pandya v Intersalonika General Insurance Co SA [2020] EWHC 273 (QB), the claims were ultimately deemed invalid because the limitation rules of those jurisdictions prescribed that claims ought to be served for limitation to be interrupted.

However, it was not the case that foreign rules of service should take precedence over the CPR. Mrs. Justice O’Farrell identified that “The service of originating process is the act by which the defendants are subjected to the court’s jurisdiction. Attempts to superimpose the diverse rules of service of foreign courts, as distinct from a requirement that there should be valid service of a claim, would cause uncertainty and procedural chaos”. Therefore, it was not necessary for the claim forms to comply with the Brazilian rules of service.

In any event, even if the Brazilian rules on commencement of proceedings applied, there is no real dispute between the Brazilian law experts that it is likely that the claim forms would be effective to stop time running. Accordingly, the claims were valid to stop time running for prescription.

Comment

There are two points which travel lawyers can take from the discrete treatment of limitation in this case. First, it is not necessary for service of the claim form within the jurisdiction to comply with foreign rules of service. Second, travel lawyers should not only check the limitation period of the foreign jurisdiction – but also what is required to stop limitation in the foreign jurisdiction. While in England it is permissible to serve a claim form after the expiry of the limitation period, other jurisdiction may operate differently.

About the Author

Anirudh Mandagere has a broad practice across all areas of chambers’ specialisms, acting for both claimants and defendants, and is an enthusiastic and valued member of the travel team. Before joining Deka Anirudh worked as a judicial assistant at the Court of Appeal and taught law at the London School of Economics.

The Long Reach of English Justice: Court of Appeal Confirms Foreign Heirs Can Be Joined Solely for Enforcement Purposes

The Public Institution for Social Security v Al Rajaan [2025] EWCA Civ 1505

In a decision that will alarm wealthy families with complex international asset structures, the Court of Appeal has dismissed the appeal in The Public Institution for Social Security v Al Rajaan [2025] EWCA Civ 1505.

The Court confirmed that the children of the late Fahad Al Rajaan (the former Director General of PIFSS, the public pension fund of the State of Kuwait) can be joined as defendants to the massive fraud proceedings against their late father’s estate. Crucially, this was permitted not because they participated in the alleged fraud, but solely to ensure that any judgment obtained in England would be enforceable against inherited assets in Switzerland.

Why this matters

This judgment explicitly endorses the “Enforcement Basis” for jurisdiction. It signals that the English Courts are willing to drag foreign parties into English litigation purely to facilitate the recognition of judgments abroad, bypassing the strict territorial limits of English estate administration.

The judgment, delivered by Lord Justice Arnold, reflects a pragmatic, “commercial reality” approach. The English Court is increasingly intolerant of “fragmentation”—the risk that a claimant wins a decade-long trial in England only to be told by a Swiss judge that the judgment binds the wrong people.

Practical Implications

For litigators involved in cross-border fraud and asset recovery, this decision provides a powerful new weapon.

The Court accepted that the “necessary or proper party” gateway (6B PD, para 3.1(3)(b)) can be used to join a foreign defendant even where no substantive cause of action (e.g. tort or contract) is asserted against them personally, provided that:

1. There is a real issue to be tried between the claimant and the “anchor” defendant (here, the English estate/personal representative); and
2. Joining the heirs is necessary to prevent them from re-litigating the deceased’s liability during enforcement proceedings abroad.

The Bigger Picture

This decision is further evidence of the increasingly pro-enforcement attitude of the Commercial Court: The Court explicitly relied on the reasoning of Foxton J (as he then was) in Commercial Bank of Dubai PSC v Al Sari [2024] EWHC 3304 (Comm). In that case, the court allowed a “Chabra” style jurisdiction to bind a third party. Al Rajaan takes this a step further by applying it to heirs who are innocent of wrongdoing but are merely the passive recipients of the defendant’s legal personality.

The decision navigates a narrow path around Viegas v Cutrale [2024] EWCA Civ 1122. In Viegas, the Court held that foreign heirs could not sue in England without an English grant of representation. Critics might argue this creates an asymmetry: foreign heirs cannot use their universal succession status to bring claims in England (per Viegas), but they can be sued in England based on that same status. The Court of Appeal sought to reconcile this by focusing on the relief sought. In Al Rajaan, the relief against the heirs was effectively declaratory—a tool to assist the English court’s primary function of resolving the dispute against the original defendant.

Future Horizon: What to Watch

The judgment leaves several doors ajar:

1. The “Substantive Basis” Question: The Court declined to rule on whether the heirs were personally liable for the debts under Swiss law (the “Substantive Basis”), as the “Enforcement Basis” was dispositive of the appeal. This remains an open question. If a future case finds that foreign heirs are personally liable under English conflicts of law rules, it would represent a significant shift in private international law.
2. Supreme Court Appeal? Given the tension with the strict territoriality of administration principles in Dicey, Morris & Collins (Rules 159 & 160), this case is ripe for a Supreme Court challenge. The Appellants may argue that the Court has impermissibly conflated the English administrator (who has no power abroad) with the foreign heirs (who have no presence here).
3. Impact on Service: Watch for an uptick in applications to serve out of the jurisdiction on family members of fraud defendants. The “necessary or proper party” gateway has just become significantly wider.

About the Author

Called in 2010, Tom Collins is ranked in the Legal 500 as a specialist in Travel Law. He has considerable experience across a wide range of travel and private international law disputes and has advised claimants and defendants in multi-party actions.