BHP Group (UK) Ltd & Anor v PGMBM Law Ltd

An anti-suit injunction restraining a foreign evidence-gathering application may be granted where the application materially interferes with, or prejudices, the English court process and is therefore oppressive, vexatious or otherwise unconscionable. The inquiry is highly fact-sensitive. Use of Title 28 of the United States Code, section 1782, to obtain evidence for contemplated English proceedings is not inherently unconscionable merely because equivalent pre-action procedures are unavailable in England. The court must distinguish legitimate pre-action evidence-gathering from duplicative or unfair pre-trial cross-examination. Delay, procedural conduct and comity may independently justify refusing relief. Even assuming unconscionability, the injunction remains discretionary.

BHP sought an anti-suit injunction against PGMBM Law Ltd restraining further steps in a United States application under section 1782 of Title 28 of the United States Code. The application had resulted in subpoenas requiring a former Renova director, Mr de Freitas, to give evidence concerning contemplated claims by PG against BHP. BHP argued that the application was a speculative and oppressive interference with potential English proceedings, particularly because Mr de Freitas had previously provided three witness statements and might not later give evidence at trial. PG argued that the deposition served a legitimate pre-action purpose and that the scope and utility of the evidence were matters for the Arkansas Court. The central issues were whether the application was unconscionable and, if so, whether an injunction should be granted in the court’s discretion.

1. The claim was dismissed. PG’s application and intended reliance on the section 1782 order were not unconscionable, whether characterised as vexatious or oppressive conduct or as interference with the English court process.

2. The governing question was whether the English court process would be materially interfered with or prejudiced without an injunction. The assessment was highly fact-sensitive and depended on the context.

3. The case was materially different from Omega Group Holdings Ltd v Kozeny, where the proposed deponents were already intended witnesses in fully pleaded English proceedings and the foreign depositions would create duplicative cross-examination. Here, PG sought evidence at a legitimate pre-action stage to understand Renova’s role and formulate its proposed claim. A future deposition and evidence at trial were unlikely to be duplicative.

4. The possible prejudice to BHP was small or speculative. It depended on several contingencies, including Mr de Freitas giving evidence helpful to BHP and PG pursuing the claim despite that evidence. His stated present intention not to testify in England did not establish that he would maintain that position two or three years later.

5. The width of the subpoenas and alleged misleading statements were principally matters for Judge Baker and the Arkansas Court. The use of section 1782 was not inherently illegitimate or a fishing expedition. Parties may use lawful foreign litigation facilities, even where equivalent procedures are unavailable in England.

6. In any event, the injunction would have been refused in the exercise of discretion. BHP delayed for nearly four months, engaged extensively with the Arkansas Court, and advanced there arguments which it could and should have brought promptly before the English court. This created a limited but material comity concern and amounted in substance to seeking two opportunities to obtain the desired result.

7. The offered undertakings did not materially assist. They could not provide PG with the legitimate pre-action evidence it sought and were of limited practical enforceability. The application was therefore dismissed.

First-instance decision. No prior appellate history of this claim was stated in the judgment.