Foreign Anti-Suit Relief as Criminal Contempt: Only “Exceptional” Cases Can Qualify Where Foreign Jurisdiction Is Invoked in Good Faith

1. Introduction

This appeal asked a novel but practically significant question: whether (and if so when) procuring an anti-suit injunction (“ASI”) or anti-anti-suit injunction (“AASI”) from a foreign court, intended to restrain or hinder claims being pursued in England and Wales, can amount to criminal contempt of court.

The dispute sits within the large-scale Technology and Construction Court proceedings arising from the Fundão Dam collapse in Brazil (5 November 2015), with over 600,000 claimants, including 46 Brazilian municipalities (“MCs”). The defendants are two BHP entities subject to English jurisdiction. A key stage-1 issue in the TCC (“the Standing Issue”) was whether, under Brazilian constitutional/legal constraints, the municipalities had standing/capacity to litigate outside Brazil.

Four months before the stage-1 trial, BHP (it was accepted, for these purposes) procured and funded a constitutional claim in Brazil’s Supreme Federal Court (“STF”) brought by IBRAM (the “IBRAM Claim”), seeking declarations that municipalities lacked standing to sue abroad and orders requiring them to discontinue foreign proceedings, including the TCC claims. The MCs responded in England by applying for an ASI (ultimately resolved by undertakings). They then issued a criminal contempt application alleging that BHP’s procurement/funding of the IBRAM Claim was designed to interfere with the administration of justice in England by preventing/hindering the TCC proceedings.

At first instance, Constable J refused to strike out the contempt application. The Court of Appeal allowed BHP’s appeal, concluding the contempt claim disclosed no reasonable grounds.

2. Summary of the Judgment

The Court of Appeal held that the MCs’ contempt case could not succeed on the pleaded basis, even assuming the allegations were true for strike-out purposes. The decisive reasoning was that:

• If BHP had procured the IBRAM Claim “at the outset”, it would plainly have been appropriate for Brazil’s STF to determine the Brazilian constitutional standing question first, and (if necessary) to protect its jurisdiction with anti-suit relief. The MCs conceded such conduct would not be contempt.
• The MCs’ attempt to distinguish the actual conduct by pointing to timing (four months before the stage-1 trial) failed as a matter of principle: the actus reus (seeking foreign anti-suit relief) and the mens rea (to impede the TCC claims) were not materially changed by timing; only the degree of disruption was.
• Other features relied on (non-withdrawability of ADPF proceedings; interim relief restricting municipality dealings with foreign lawyers) did not alter the nature of the alleged interference in a way that made it an exceptional case.

Accordingly, the appeal was allowed.

3. Analysis

3.1 Precedents Cited

A. Core criminal contempt framework

• Attorney-General v Times Newspapers Ltd [1974] AC 273
  Treated as the central modern exposition of criminal contempt grounded in public policy and protection of the “due administration of justice”. The Court of Appeal drew heavily on Lord Diplock’s three requirements (unhindered access to courts; unbiased adjudication on evidence; no usurpation of the court’s function), and on the discussion of pressure on litigants and when it becomes improper. Importantly, it supported two points: (i) contempt is not limited to inherently unlawful acts; and (ii) contempt can consist of conduct aimed at deterring litigants from pursuing claims.
• Raymond v Honey [1983] AC 1 and Attorney General v Crosland [2021] UKSC 15 [2021] 4 WLR 103
  Cited for the proposition that contempt can be established by a sufficient risk/prospect of interference; the interference need not succeed.
• Attorney General v English [1983] 1 AC 116
  Reinforced that attempted interference (even if ineffective) can suffice.
• Attorney General v Hislop [1991] 1 QB 514
  A modern illustration that conduct intended to deter a claimant from pursuing proceedings can constitute criminal contempt. Used to show the breadth of the “deter/hinder suitors” category, but also as context for the boundary question: not all pressure is contempt.

B. “Lawful acts” can be contempt if used improperly

• R v Kellet [1976] 1 QB 372
  Used as a key analogy: threatening otherwise lawful defamation proceedings to deter witnesses from giving evidence could amount to contempt/perverting the course of justice. It anchors the principle that “lawful” means can be criminal if the purpose is improper interference.
• Attorney General v Butterworth [1963] 1 QB 696 and A-G v Newspaper Publishing Plc [1988] 1 Ch 333
  Cited for mixed motives: contempt intent need not be sole or dominant.
• Attorney-General v Martin (The Times 23 April 1986, [1986] Lexis citation 1634)
  Provided the evaluative test: the dividing line is whether the pressure is “proper” or “improper” (the Court of Appeal in the present case distilled this into a single adjective: “improper”). It also supported the rejection of any narrow reading of Lord Diplock as requiring “unlawful” threats in the sense of illegal acts.
• Smith v Lakeman (1856) 26 LJ Ch 305 (1856) 2 Jur (NS) 1202 and In Re Mulock ex pte Chetwynd (1864) 3 SW & TR 599, 164 ER 1407
  Historical authorities illustrating contempt by intimidation/threats aimed at forcing withdrawal of litigation.
• Webster v Bakewell Rural District Council [1916] 1 Ch 300
  Demonstrated that not all coercive pressure between litigants is contempt: a landlord’s lawful threat to end a tenancy if the tenant persisted in litigation was held not to be contempt when honestly protecting property rights. The case supports the boundary inquiry rather than a bright-line “lawful/unlawful act” test.
• R v Toney [1993] 1 WLR 364 and R v Harvey (1981) 72 Cr. App. R. 139
  Used to reinforce that impropriety can criminalise conduct even if the threatened act is otherwise lawful, by analogy to blackmail and perverting justice.

C. Procedure/pleading rigour in contempt

• Re L (A Child) [2016] EWCA Civ 173 [2017] 1 FLR 1135 and Navigator Equities Ltd v Deripaska [2024] EWCA Civ 268 [2024] BCC 526
  Cited on the importance of clearly identifying the specific contempts alleged. Although relevant below, the pleading points were not determinative on appeal (no appeal from the judge’s rulings that defects could be cured and intent was sufficiently articulated via affidavit).

D. The ASI/AASI jurisprudence (and its conceptual limits)

• Societe Nationale Industrielle Aerospatiale v Lee Kui Jack [1987] AC 871 and Airbus Industrie GIE v Patel [1999] 1 AC 119
  Provided the foundation: ASIs under s.37 Senior Courts Act 1981 are granted where “the ends of justice require it”, but are constrained by comity and require a sufficient English interest.
• Castanho v Brown & Root (UK) Ltd [1981] AC 557 and Aerospatiale
  Cited for the caution against rigid categories and the “flexible” nature of ASI doctrine.
• Donohue v Armco Inc [2001] UKHL 64 [2002] CLC 440
  Cited for the strong presumption in contractual cases (exclusive jurisdiction/arbitration) that an ASI should be granted absent strong reasons.
• Turner v Grovit [2001] UKHL 65 [2002] 1 WLR 107
  Crucial to the Court of Appeal’s distinction: ASIs are private, “fault-based” equitable remedies protecting a litigant’s legitimate interest; they are not primarily a public-law tool to vindicate the integrity of the English court.
• Masri v Consolidated Contractors International Co SAL (No 3) [2008] EWCA Civ 625 [2009] QB 503
  Reinforced that talk of “protecting the integrity of the process” is ancillary to having jurisdiction over the substance, but the normative basis remains protection of private interests from unconscionable oppression.
• SAS Institute Inc v World Programming Ltd [2020] EWCA Civ 599 [2020] 1 CLC 816
  Used for the “sufficient interest” and “natural forum” considerations.
• Stitching Shell Pensionfonds v Krys [2014] UKPC 41 [2015]AC 616, Deutsche Bank AG v Highland Crusader Offshore Partners LP [2009] EWCA 725 [2010 1 WLR 1023, Re Maxwell Communications Corporation plc (No. 2) Barclays Bank plc v Homan [1992] BCC 757, British Airways Board v Laker Airways Ltd [1985] AC 58, and Bushby v Munday (1821) 5 Madd 297
  Cited for the comity-sensitive reality that ASIs, while formally directed at a party, practically interfere with foreign proceedings—hence caution and restraint.
• Wolverhampton City Council v London Gypsies and Travellers [2023] UKSC 47 [2024] AC 983
  A passing reference was addressed: ASIs can “preserve the integrity of the appropriate forum”, but the Court of Appeal treated that as not altering the private-rights basis of ASI doctrine.

E. Foreign law determination and “natural forum” logic

• Dexia Crediop SPA v Comune Di Prato [2017] EWCA Civ 428, [2017] 1 CLC 969
  Used to explain why a decision by the STF on Brazilian constitutional standing would be practically dispositive for the English court’s determination of Brazilian law (English courts aim to decide what the foreign court would decide).

3.2 Legal Reasoning

(i) The “improper interference” test is necessary but not sufficient in the foreign ASI setting

The Court reaffirmed orthodox contempt doctrine: criminal contempt protects the public interest in the administration of justice; it can be committed by conduct aimed at deterring litigants; and a lawful act may become contempt if done for an improper purpose and creating a sufficient risk of interference.

However, the key move was contextual: in the international anti-suit arena, “impropriety” cannot be assessed as if the conduct occurred in a purely domestic setting. The Court distilled five propositions (paras 60–65), the most important being:

• Symmetry / legitimacy principle: it would be wrong to criminalise in England conduct that English courts would “positively sanction” by granting comparable ASI/AASI relief in materially equivalent circumstances.
• Comity and pluralism of jurisdictional rules: because civilised states adopt different jurisdictional bases, good faith invocation of a foreign court’s jurisdiction (and its ancillary ASI power) is not generally “improper” for the purposes of English criminal contempt.
• ASI doctrine is private-rights based: ASIs restrain “unconscionable”/“vexatious and oppressive” conduct to protect litigants’ private interests; criminal contempt vindicates a public interest. The mere availability (or unavailability) of ASI relief does not itself answer contempt questions.

(ii) Why “timing” could not transform a non-contempt into a contempt

The MCs’ case depended on characterising the IBRAM Claim as a strategically timed disruption of the imminent stage-1 trial—i.e. “too late” and “maximum disruption”. The Court rejected this as a matter of principle because:

• The MCs accepted that if such relief had been sought at the outset, it would not have been contempt—even though it would still have been aimed at preventing the English litigation progressing.
• If actus reus (foreign ASI effort) and mens rea (impeding the TCC claims) are identical, timing changes only the consequences (degree of disruption), not the essential quality that would make it “improper” in the criminal sense.
• In the Court’s view, the MCs’ complaint was ultimately that BHP tried to stop the English litigation—yet that is the very purpose of anti-suit relief, and, in good-faith jurisdictional disputes, is not inherently improper.

(iii) Non-withdrawability and “extraordinary” interim relief did not create the required exceptionality

The fact that ADPF proceedings could not be withdrawn by IBRAM did not change the analysis: it is simply a procedural feature of the STF process that would have existed even if proceedings were commenced earlier. Similarly, the unusual interim relief aimed at restricting municipalities’ dealings with foreign lawyers, though striking, did not change the pleaded contempt case (which alleged the same core interference: hindering the TCC claims).

(iv) Novelty, Articles 6 and 7 ECHR, and “direct vs indirect” interference

The Court held that novelty of conduct is not a defence to contempt; contempt principles are sufficiently certain. It rejected an argument that ASIs are merely “indirect” interference: contempt can be indirect and aimed at parties. Article 6 arguments were dismissed as inapposite (the alleged unfairness concerned Brazilian proceedings). But the Court accepted that treating good-faith foreign anti-suit recourse as “improper” would be an exceptional and therefore rare conclusion—helping explain why the contempt claim was unprecedented.

3.3 Impact

• High threshold for criminalisation in cross-border anti-suit manoeuvres: Parties faced with foreign ASIs/AASIs aimed at English proceedings will generally need to rely on civil tools (ASIs, undertakings, case management, costs, and forum conveniens arguments) rather than criminal contempt.
• Comity as a substantive limiting principle in contempt: The judgment operationalises comity not merely as “restraint” in granting ASIs, but as a limit on what may be labelled “improper” for criminal contempt where foreign jurisdiction is invoked in good faith.
• Tactical litigation and hard edges: Even sharp tactics (late launching; maximal disruption) do not, without more, satisfy the “exceptional case” requirement. The likely battleground in future cases becomes whether foreign anti-suit proceedings were not in good faith, or whether the foreign court’s conduct is so “extreme” as to lose comity’s protection (echoing Airbus’ “extreme” cases language).
• Separation of doctrines: The decision draws a clean conceptual line: “vexatious and oppressive” (ASI standard) is not the same as “improper” (criminal contempt standard). This is likely to discourage attempts to use criminal contempt as a punitive add-on where ASI relief is difficult or ineffective.

4. Complex Concepts Simplified

• Criminal contempt of court: conduct treated as a public wrong because it risks undermining the administration of justice. It is not primarily about compensating a litigant; it protects public confidence and the functioning of courts.
• Civil contempt: typically disobedience to a court order (e.g., breaching an ASI/undertaking). The sanction is tied to enforcing compliance with an order protecting private rights/interests.
• ASI / AASI: an anti-suit injunction restrains a party from pursuing foreign proceedings; an anti-anti-suit injunction restrains a party from pursuing an injunction abroad that would itself restrain proceedings here.
• Comity: mutual respect between courts of different states. It does not mean deference in every case, but it makes courts cautious about condemning (or interfering with) foreign judicial processes, especially where foreign courts are acting within their own jurisdictional rules.
• “Improper” pressure: the Court preferred a single evaluative term—pressure becomes contempt when it crosses the line into impropriety in the criminal sense (not merely hard-edged or disadvantageous litigation tactics).
• Standing Issue: whether, as a matter of Brazilian law, municipalities had the authority/capacity to sue in foreign courts without federal authorisation and without waiving immunities.
• ADPF (Arguição de Descruprimento de Preceito Fundamental): a Brazilian constitutional procedure seeking declarations on breaches of fundamental precepts; here, it had the procedural feature that the initiator could not unilaterally withdraw it.

5. Conclusion

The Court of Appeal’s decision is a significant constraint on attempts to reframe foreign anti-suit strategies as criminal contempt in England and Wales. It accepts the breadth of contempt doctrine in principle—lawful acts can be criminal if done for an improper purpose—but holds that, in the foreign ASI/AASI context, comity and the legitimacy of good-faith recourse to a competent foreign court mean that only truly exceptional cases could qualify.

The judgment therefore stabilises the boundary between (i) private-law remedial control of cross-border litigation through ASIs/undertakings and (ii) the criminal law of contempt, reserving the latter for rare cases where the foreign anti-suit move can properly be characterised as “improper” despite comity—most plausibly where there is bad faith invocation of foreign jurisdiction or some extreme circumstance depriving the foreign process of the respect comity normally requires.