BHP Group (UK) Ltd & Anor v Municipio de Mariana & Ors

Factual and Procedural Background

The appeal concerns whether procuring anti-suit or anti-anti-suit proceedings in a foreign court, intended to restrain or hinder pursuit of claims in England and Wales, can amount to criminal contempt. The appeal arises from an order of Judge Constable dismissing an application to strike out a criminal contempt application brought in the Technology and Construction Court ("TCC") by the Respondents (the "Municipality Claimants" or "MCs") against the Appellants (Company A). The underlying litigation in the TCC follows the collapse of a dam ("the Dam") in The State on 5 November 2015, which caused deaths, pollution and extensive damage and gave rise to claims by over 600,000 claimants, including 46 municipalities (the MCs).

Company A (the Appellants) includes a domestic company and an Australian-registered company and is associated with Company B (a Brazilian group member) and Company C (the joint venture operator of the Dam). Company D (the Brazilian Mining Association) filed a constitutional claim in the Brazilian Supreme Federal Court ("STF") on 11 June 2024 (the "IBRAM Claim"), said to have been procured and funded by Company A. The IBRAM Claim sought declarations including that Brazilian municipalities lack standing to bring foreign proceedings and sought interim relief that would, if granted, restrict the MCs' pursuit of the TCC claims.

On 24 June 2024 the MCs applied in the TCC for an anti-suit injunction ("ASI Application"). Company A gave undertakings in a consent order on 22 July 2024 to refrain from taking or procuring steps to progress or encourage the IBRAM Claim and related assistance; Company A complied. The IBRAM Claim nevertheless continued. The MCs issued a criminal contempt application in the TCC on 7 October 2024 alleging that Company A procured and funded the IBRAM Claim to interfere with the administration of justice in the TCC. Company A applied to strike out that contempt application (the "Strike Out Application"), which Judge Constable dismissed by judgment of 26 June 2025. The present appeal followed; the appellate court heard argument and delivered reasons, concluding (at para 80) that the appeal should be allowed. Judges Phillips and the Chief Justice concurred.

Legal Issues Presented

1. Whether procuring ASI/AASI relief from a foreign court, intended to restrain pursuit of claims in England and Wales, can amount to criminal contempt of the English court.
2. Whether the Contempt Application in this case disclosed reasonable grounds (CPR 3.4(2)(a)) or was an abuse of process.
3. What legal principles govern when otherwise lawful acts (including instituting foreign proceedings or procuring foreign anti-suit relief) can constitute criminal contempt.

Arguments of the Parties

Appellant's Arguments

• Company A advanced the Strike Out Application on two bases: (i) abuse of process; and (ii) no reasonable grounds for contempt under CPR 3.4(2)(a).
• Company A submitted that the contempt pleading was defective (insufficient particulars of intent), and that the conduct was novel and not within recognised categories of criminal contempt.
• Company A argued that seeking ASI/AASI relief abroad is properly a matter for ASI jurisdiction and that the availability of ASI/AASI should preclude treating such conduct as criminal contempt.
• Company A contended the Judge's approach risked Article 7 and Article 6 ECHR objections by criminalising conduct not clearly foreseen.
• Company A argued timing and indirectness of any interference meant the conduct could not properly be characterised as criminal contempt.

Respondent's Arguments

• The MCs alleged Company A procured and funded the IBRAM Claim in the STF with the purpose of preventing or hindering the MCs' pursuit of their TCC claims; that purpose rendered otherwise lawful acts improper and thus capable of amounting to criminal contempt.
• The MCs relied on the pleaded "package" of circumstances (timing shortly before the stage 1 trial on the Standing Issue, absence of notice, and the content of the IBRAM Claim including requests for interim measures) as evidence of improper purpose.
• In oral argument the MCs accepted that if the IBRAM Claim had been brought at the outset in good faith it would not have been contempt; their case focused on the particular circumstances and timing.

Table of Precedents Cited

Court's Reasoning and Analysis

The appellate panel set out the governing principles of criminal contempt, drawing principally on Attorney-General v Times Newspapers Ltd [1974] AC 273 and subsequent authority. The court emphasised that criminal contempt protects the public interest in the due administration of justice and may arise where conduct interferes with (or creates a sufficient risk of interfering with) (i) access to courts, (ii) impartial adjudication based on evidence adduced in court, or (iii) the tribunal's exclusive function to decide disputes. The court reiterated that otherwise lawful acts can constitute contempt if undertaken with an improper purpose to interfere with the administration of justice.

The panel accepted that the Contempt Application must be assumed true for strike-out purposes and that the supporting affidavit alleged the requisite mental element (intent to block the MCs' claims in the TCC). It rejected Company A's submissions that novelty of the conduct or the availability of ASI/AASI jurisdiction meant the contempt jurisdiction was ousted. The court distinguished the private-interest basis for ASI relief (designed to protect litigants' private rights and exercised with comity) from criminal contempt (which protects the public interest). The court derived five propositions about foreign ASI/AASI conduct: (1) it would be contrary to principle to criminalise conduct our courts would themselves sanction by granting equivalent ASI relief; (2) comity requires respect for good-faith invocation of foreign jurisdictional rules; (3) the existence or availability of ASI relief does not automatically mean pursuit of foreign ASI is criminal; (4) criminal contempt is limited to what is reasonably necessary to protect the administration of justice and requires balancing of interests; and (5) seeking foreign ASI would only exceptionally amount to criminal contempt.

Applying those principles to the pleaded facts, the court found that many elements relied on by the MCs (timing shortly before the stage 1 trial, inability to withdraw the IBRAM Claim, unusual interim relief provisions, or subsequent remediation negotiations) did not, as a matter of principle, elevate seeking foreign ASI into the exceptional class of conduct amounting to criminal contempt. The court concluded that conduct procuring in-good-faith recourse to a competent foreign court's ASI/AASI jurisdiction is ordinarily not "improper" for contempt purposes, and that timing, standing alone, did not convert such conduct into criminal contempt. The court therefore concluded that the Contempt Application did not fall within the narrow exceptional category that would sustain criminalisation on the pleaded basis, and that the legal issues were suitably determinable on the strike-out record.

Holding and Implications

DISPOSED OF

Holding: The appellate court held that, on the pleaded facts and applying established principles, seeking foreign ASI/AASI relief will only exceptionally amount to criminal contempt; the appeal was allowed. The panel concluded that the particular circumstances pleaded did not demonstrate the necessary exceptional impropriety to ground criminal contempt.

Implications: The decision clarifies that (i) criminal contempt remains available for conduct that improperly interferes with the administration of justice, but (ii) comity and the private-interest basis of ASI/AASI jurisprudence mean foreign ASI/AASI applications will only rarely be criminalised. The direct effect is that the Contempt Application as pleaded could not be sustained; no broader change to ASI jurisprudence was declared beyond the principles applied and no new categorical rule was established.