Município de Mariana v BHP Group (UK) Limited & Anor

A criminal contempt application may disclose reasonable grounds where foreign proceedings are allegedly procured or funded with the specific purpose of interfering with access to proceedings in England. The novelty of the conduct does not alone justify strike out. Lawful proceedings may constitute contempt if brought for that improper purpose.

The existence of an anti-suit injunction jurisdiction does not oust the criminal contempt jurisdiction, particularly where an injunction may be ineffective. A later contempt application is not necessarily abusive re-litigation merely because related civil proceedings were compromised. The court must make a broad, merits-based assessment of public and private interests. A party to the underlying litigation may still be a suitable applicant if it presents the facts fairly and dispassionately.

The Municipality Claimants pursued claims in England arising from the Fundão Dam collapse in Brazil. They alleged that BHP procured and funded proceedings brought by IBRAM before the Brazilian Supreme Federal Court, including interim relief intended to restrict the municipalities’ access to English proceedings and legal assistance.

The Claimants had previously obtained an anti-suit injunction application which was compromised by a consent order containing undertakings from BHP. They subsequently filed a criminal contempt application, alleging interference with the administration of justice. BHP applied to strike it out on grounds that it disclosed no reasonable grounds, constituted abusive re-litigation, was contrary to the public interest, and was pursued by unsuitable guardians of the public interest.

1. Strike out test. Under CPR 3.4(2)(a), the court must assume pleaded facts to be true and strike out only where the claim is legally incoherent or no further investigation could assist. Complex, developing or policy-sensitive issues should not ordinarily be summarily determined.
2. Nature of the alleged contempt. The words “in the face of the Court” were inaccurate, because the alleged conduct was not within the court’s personal knowledge. They could be removed without defeating the substantive complaint. The application notice and supporting affidavit, read together, adequately identified the alleged specific purpose of interfering with the administration of justice.
3. Interference with justice. Criminal contempt is an overarching category, not a fixed catalogue of previously recognised conduct. It is reasonably arguable that procuring and funding foreign proceedings, including relief designed to prevent litigants instructing lawyers in England, may constitute contempt when undertaken specifically to obstruct the English proceedings. The lawfulness of the foreign proceedings or the means used to fund them does not prevent that conclusion.
4. Anti-suit jurisdiction. The existence of anti-suit injunctions and associated civil contempt powers does not oust criminal contempt jurisdiction. Foreign proceedings may in principle constitute criminal contempt, and an injunction may be ineffective where proceedings cannot be withdrawn or remain funded.
5. Abusive re-litigation. Applying the broad merits-based approach in Johnson v Gore Wood and Outotec, the Contempt Application was not abusive. The applications had different purposes, the Claimants’ understanding of BHP’s unlimited funding obligation developed after the consent order, and the alleged interference could not necessarily be remedied by the earlier injunction.
6. Public interest and fitness. The alleged conduct was sufficiently serious and publicly important to justify further judicial resources. Although applicants in criminal contempt proceedings perform a quasi-prosecutorial role, the Claimants and their solicitors were not disqualified merely because they were parties with collateral interests. They could present the facts fairly and with balance.
7. BHP’s strike-out application was dismissed. The Contempt Application was to be heard by the Divisional Court.