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

Seeking anti-suit or anti-anti-suit relief in a foreign court will only exceptionally amount to criminal contempt in England and Wales. Criminal contempt requires improper conduct which creates a sufficient risk of interference with the public interest in the administration of justice. Conduct otherwise lawful may be improper because of its purpose.

Comity ordinarily prevents a good-faith invocation of a competent foreign court’s jurisdiction, and ancillary foreign anti-suit relief supporting it, from being characterised as improper. The private-law standards for English anti-suit relief, including vexation and oppression, are distinct from criminal contempt. Timing and consequential disruption to English proceedings do not alone make an otherwise unobjectionable foreign anti-suit claim contemptuous.

Following the Fundão Dam collapse in Brazil, Brazilian municipalities brought claims against BHP in the Technology and Construction Court. BHP had raised, for determination at the first-stage trial, an issue as to the municipalities’ standing under Brazilian law to bring proceedings outside Brazil.

BHP procured and funded a constitutional claim in the Brazilian Supreme Federal Court. That claim sought declarations concerning the municipalities’ standing and interim and final relief which would require them to suspend or discontinue the English proceedings. The municipalities applied for BHP to be punished for criminal contempt. Constable J refused BHP’s application to strike out that application. The first-stage trial subsequently resolved the standing issue in the municipalities’ favour: [2025] EWHC 3001 (TCC).

The central issue was whether procuring foreign anti-suit relief, in the pleaded circumstances and assuming the pleaded facts to be true, could amount to criminal contempt of the English court.

1. Appeal allowed. The contempt application should have been struck out. On the facts assumed for the strike-out application, BHP’s procurement and funding of the Brazilian constitutional claim could not amount to criminal contempt.

2. Criminal contempt protects the public interest in the due administration of justice. It extends to conduct which improperly hinders a litigant from pursuing a claim, provided that there is a sufficient risk of interference. The conduct need not succeed. It may be otherwise lawful, and an improper purpose need only be one of the actor’s purposes. The appropriate boundary is whether the conduct was improper, not whether it was intrinsically unlawful.

3. That framework must be applied with comity in mind. A good-faith invocation of the jurisdiction of a competent foreign court, in accordance with private international law which English courts should respect, is not ordinarily improper. The same is generally true of foreign anti-suit relief which supports that invocation. Only exceptional circumstances, including an extreme case in which the foreign court’s conduct loses the respect ordinarily required by comity, could justify criminal contempt.

4. The anti-suit jurisdiction under section 37 of the Senior Courts Act 1981 is different. It protects a litigant’s private contractual or equitable interests, whereas criminal contempt protects the public administration of justice. The availability, or ineffectiveness, of anti-suit relief does not convert vexatious or oppressive conduct into improper conduct for criminal-contempt purposes. Where an anti-suit order is made, disobedience is addressed by civil contempt.

5. The Brazilian Supreme Federal Court was the natural and competent forum to determine the pleaded Brazilian constitutional standing issue. If the claim and its anti-suit relief had been pursued at the outset, they would not have been contemptuous. Its later timing, lack of notice, inability to withdraw the constitutional claim, and potential disruption to the English trial did not alter the nature of either the relief sought or the alleged intention. They therefore did not make the case exceptional.

• Court of Appeal (Civil Division): Allowed BHP’s appeal and held that the municipalities’ criminal-contempt application should be struck out.

• High Court, Technology and Construction Court: Constable J dismissed BHP’s strike-out application by an order of 26 June 2025. The citation for that decision was not stated in the judgment.