High Court decides to hear case against UK domiciled companies despite claims having more real and substantial connection to Brazil

In Da Silva & Ors v Brazil Iron Ltd & Anor [2025] EWHC 606 (KB), the High Court rejected a jurisdiction challenge by two UK companies facing claims in the English courts arising out of the operations of their Brazilian subsidiary. The High Court considered that Brazil was the place with which the claims were most closely connected. However, it held that the English courts were the appropriate forum to try the case because of a real risk that the Claimants would “not be able to fund… legal representation of the kind necessary to litigate these claims to a proper conclusion” in Brazil. 

We have seen a number of decisions in which the English courts have accepted jurisdiction over claims against English companies with operations overseas, and the impecuniosity of the claimants and their inability to fund legal representation has been an important factor. This latest decision further highlights the risk of litigation in the English courts against UK domiciled companies in relation to liability arising out of their international operations.

Background

The Claimants (Brazilian individuals including certain protected indigenous groups) brought claims in the English courts against the Defendant UK companies. Their claim was for environmental damage to land and other damage allegedly caused by the mining activities of the Defendants’ Brazilian subsidiary.

The Defendants applied to the High Court for a declaration that it should not hear the claim on the basis that Brazil was the proper forum. The Claimants opposed the application, arguing that the English courts were the appropriate forum, both because the claim was connected to England and that they risked being unable to obtain “substantial justice” in Brazil due to the unavailability of funding for suitable legal representation.

Decision

Issue 1: Was there another more appropriate forum?

Under the applicable legal test (as set out in the Spiliada case), the Court first had to consider whether there was another forum outside England which was clearly and distinctly more appropriate for the trial of the claim. In determining the appropriateness of the forum, the courts look at connecting factors to determine with which forum the action has the most real and substantial connection.

The Court carried out a holistic assessment of factors connecting the case to Brazil and England, in accordance with established principles, and concluded that Brazil was the forum with which the claim had the most real and substantial connection.

The Court recognised that there were some significant factors pointing towards England: the Defendants were domiciled in England, had been served in England as of right, and evidence relating to the control of the English subsidiary (an important issue) would be located in England and in English. However, those factors were outweighed by the factors connecting the case to Brazil. Most importantly, the case concerned environmental damage in Brazil, which would need to be the subject of evidence in Brazil. In addition, Brazilian law applied and factors “affecting convenience or expense” favoured Brazil, as it would “plainly be easier and cheaper for the evidence to be received in Brazil in Portuguese”.

Issue 2: Was there a real risk of not obtaining substantial justice in that other forum?

Having established that Brazil was the forum with which the claim had the most real and substantial connection, under the second stage of the legal test, the Court then had to consider whether there was a real risk the Claimants would not obtain substantial justice in Brazil.

The Court decided that, despite its closer connection with the case, Brazil was not the appropriate forum for the case to be tried “in the interests of the parties and for the ends of justice”. On the evidence, the Court considered there was a real risk that the Claimants would not be able to fund, or obtain funding for, legal representation of the kind necessary to litigate the claims to a proper conclusion in Brazil.

The Court emphasised that this was not a criticism of the Brazilian legal system. It noted that Brazil is a large and wealthy country with a sophisticated legal system and there was no issue with any lack of integrity in its court system. Rather, the Court concluded that there were features specific to this case that, in combination, prevented sufficient access to justice for these Claimants. These included the modest value of the individual claims, the number of Claimants (at 103, generative of more work without sufficient economy of scale), the Claimants’ “very limited means”, the complexity of the claim, and the time such complex litigation might take in the Brazilian courts (in so far as this made legal representation less attainable).

The Court heard evidence that the Claimants could not fund themselves and had been unable to find adequate legal representation in Brazil over a prolonged period. In addition, while legal aid and fee arrangements existed in Brazil, the terms on which they could be obtained were unlikely to be sufficient to support the Claimants and / or make the case sufficiently economic for Brazilian lawyers to take it on. On the other hand, in England, the Claimants had obtained appropriate legal representation on economic terms.

The Defendants made various proposals to try and mitigate concerns surrounding the Claimants’ ability to access justice in Brazil, including offering to fund the Claimants’ disbursements such as the costs of expert evidence. Following other recent cases that have considered this issue (see for example our earlier article on the Court of Appeal decision in Limbu v Dyson here), the Court rejected these proposals, holding in relation to expert evidence that “it is not fair for a defendant to have any degree of control over a claimant’s expert evidence, whether by paying for it or otherwise.”

Key takeaways

This decision adds to an emerging line of case law in which the English courts have accepted jurisdiction over claims where there is a risk that claimants of limited financial means will not be able to adequately access justice in another jurisdiction with which the case is potentially more closely connected. It appears these are not concerns that defendants can readily address, with the Court in both this case and Limbu rejecting the defendants’ offers to fund certain of the claimants’ disbursements on the basis this would undermine fairness to the claimants in another way.

With thanks to Owen Greaves for his assistance in preparing this post.