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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
- 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.
- Whether the Contempt Application in this case disclosed reasonable grounds (CPR 3.4(2)(a)) or was an abuse of process.
- 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
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| [2022] EWCA Civ 951 [2022] 1 WLR 4691 | Earlier appellate judgment rejecting Company A's challenge to jurisdiction (contextual background). | Used to summarise procedural history of the TCC proceedings. |
| [2025] EWHC 3001 (TCC) | First stage trial judgment (contextual background). | Referenced for factual background and stage 1 trial issues resolved by Judge O'Farrell. |
| Re L (A Child) [2016] EWCA Civ 173 [2017] 1 FLR 1135 | Pleading requirements in contempt/related applications; need to identify particulars of alleged contempt. | Relied upon to identify importance of specifying particulars of alleged contempt; court found affidavit supplied sufficient particularity. |
| Navigator Equities Ltd v Deripaska [2024] EWCA Civ 268 [2024] BCC 526 | Pleading/particularity principles in contempt context. | Cited alongside Re L to support requirement that particulars be provided; court held requirements met. |
| R v Kellet [1976] 1 QB 372 | Illustrates that lawful acts can be contempt if done with improper purpose (threatened legal proceedings to dissuade witnesses). | Used to support principle that otherwise lawful legal proceedings can amount to contempt if intended to interfere with administration of justice. |
| Dagi v BHP (18 September 1995, unreported) | Illustrative foreign authority on similar issues (lawful acts as potential contempt). | Referred to as an example consistent with the principle that lawful acts may be contemptuous if improperly purposed. |
| Attorney-General v Times Newspapers Ltd [1974] AC 273 | Foundational articulation of principles governing criminal contempt and balancing public policy interests. | Extensively relied upon to set out general principles on what constitutes interference with administration of justice and the "improper" test. |
| Raymond v Honey [1983] AC 1 | Risk-based approach: interference need not have occurred, only a sufficient risk. | Cited to show that contempt can be established by risk of interference even if interference did not succeed. |
| Attorney General v Crosland [2021] UKSC 15 [2021] 4 WLR 103 | Supporting authority on risk/likelihood approaches to contempt. | Used to support proposition that risk of interference suffices for contempt liability. |
| In Re Mulock ex pte Chetwynd (1864) 3 SW & TR 599, 164 ER 1407 | Private threats/pressure on suitors can constitute contempt. | Cited as historical authority supporting principle that private intimidation of a suitor can be criminal contempt. |
| Webster v Bakewell Rural District Council [1916] 1 Ch 300 | Limits of contempt: lawful exercise of rights as legitimate pressure on a party. | Distinguished on facts to show some lawful pressure on parties is not contempt if honestly exercised to protect rights. |
| Attorney General v Butterworth [1963] 1 QB 696 | Mixed motives; intent need not be sole purpose for contempt. | Applied to support proposition that an improper purpose need not be sole motive for contempt. |
| A-G v Newspaper Publishing Plc [1988] 1 Ch 333 | Mens rea and standards in contempt; intent requirements. | Cited for the proposition that intent to interfere may be necessary (subject to controversy) and mixed motives suffice. |
| R v Toney [1993] 1 WLR 364 | Perverting the course of justice and related authorities. | Referenced to show overlap with contempt principles and that unlawful purpose can render otherwise lawful conduct criminal. |
| Attorney-General v Martin (The Times 23 April 1986) | Examples of threats to dissuade prosecutions/claims amounting to contempt. | Used to illustrate how threats or certain pressures by legal actors can be contemptuous; court relied on its analysis. |
| Smith v Lakeman (1856) 26 LJ Ch 305 (1856) 2 Jur (NS) 1202 | Historical authority that anonymous threats to intimidate suitors are contempt. | Cited in support of proposition that threats intended to intimidate suitors can be contempt even if they would otherwise be lawful acts. |
| Attorney General v Hislop [1991] 1 QB 514 | Modern example of conduct intended to deter a claimant amounting to contempt. | Referred to as demonstrating contemporary application of contempt principles to determent of claimants. |
| Balogh v St Albans Crown Court [1975] 1 QB 73 | Indirect interference can be serious contempt. | Cited to rebut argument that only direct interference qualifies; indirect interference recognised as contempt. |
| Societe Nationale Industrielle Aerospatiale v Lee Kui Jack [1987] AC 871 | ASI jurisdiction principles: ends of justice and comity considerations. | Used to explain ASI/AASI statutory and equitable foundations and comity constraints. |
| Airbus Industrie GIE v Patel [1999] 1 AC 119 | Principles for granting ASI: ends of justice and comity; scope of ASI jurisdiction. | Applied to explain ASI jurisprudence and limits based on protection of private rights, not public interest of court. |
| Castanho v Brown & Root (UK) Ltd [1981] AC 557 | Flexibility in ASI jurisdiction and caution against rigid categorisation. | Cited in describing limits and approach to ASI relief. |
| Donohue v Armco Inc [2001] UKHL 64 [2002] CLC 440 | ASI in support of contractual rights (exclusive jurisdiction/arbitration clauses). | Used to contrast contractual ASI cases with non-contractual ones and explain applicant's private interest requirement. |
| SAS Institute Inc v World Programming Ltd [2020] EWCA Civ 599 [2020] 1 CLC 816 | Comity and natural forum concepts in ASI jurisprudence. | Referenced to support discussion on sufficient interest to justify interference with foreign court processes. |
| Turner v Grovit [2001] UKHL 65 [2002] 1 WLR 107 | ASI relief founded on protection of private interests; comity constraints. | Extensively relied upon to explain that ASI protects private rights and that acting to protect foreign jurisdictional claims is consistent with comity. |
| British Airways Board v Laker Airways Ltd [1985] AC 58 | ASI as an interference with foreign court process and need for caution/comity. | Cited to show that ASI is an interference with foreign process and must be exercised rarely with recognition of comity. |
| Masri v Consolidated Contractors International Co SAL (No 3) [2008] EWCA Civ 625 [2009] QB 503 | Requirement of an independent legal/equitable right for ASI in jurisdiction and single-forum cases. | Used to explain private right/interest requirement for ASI relief. |
| Wolverhampton City Council v London Gypsies and Travellers [2023] UKSC 47 [2024] AC 983 | Observational remark on anti-suit injunctions and forum shopping. | Quoted for a passing remark about ASIs preserving integrity of appropriate forum. |
| Bushby v Munday (1821) 5 Madd 297 (56 ER 908) | ASI directed against party rather than foreign court; historical authority on scope. | Cited to support proposition that anti-suit orders are directed at parties, not foreign courts. |
| Stitching Shell Pensionfonds v Krys [2014] UKPC 41 [2015] AC 616 | ASI and interference with foreign court processes; comity considerations. | Used to note that intended practical effect of ASI is indirect interference with foreign courts, engaging comity. |
| Deutsche Bank AG v Highland Crusader Offshore Partners LP [2009] EWCA 725 | Comity and propositions governing ASI exercise. | Cited to illustrate judicial propositions on comity when granting ASI. |
| Re Maxwell Communications Corporation plc (No. 2) Barclays Bank plc v Homan [1992] BCC 757 | ASI as restriction on foreign court remedies; cautionary statements. | Quoted to show judicial caution that injunctions restraining foreign suits interfere with foreign court processes. |
| Laker Airways Ltd v Pan American World Airways 559 F Supp 1124 (1983) | US commentary on interference with foreign court proceedings. | Quoted in support of view that restraining a party from prosecuting in a foreign court is an interference with that court. |
| Dexia Crediop SpA v Comune di Prato [2017] EWCA Civ 428 [2017] 1 CLC 969 | Role of English court in determining foreign law issues; persuasive effect of foreign court decisions. | Cited to explain that English court aims to determine foreign law as the foreign competent court would. |
| Attorney General v English [1983] 1 AC 116 | Contempt can be established by risk even if interference unsuccessful. | Relied upon to reinforce the risk-based approach to contempt. |
| R v Harvey (1981) 72 Cr. App. R. 139 | "Improper" as test in criminalising threats (analogy with blackmail test). | Referenced to support use of "improper" as the operative test for criminalisation of otherwise lawful threats. |
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.
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