The Disputes Brief

Seeking (and obtaining) anti-suit injunctive relief (ASI) or anti-anti-suit injunctive relief (AASI) in a foreign court of competent jurisdiction, in respect of a claim that is properly arguable in that court, will not ordinarily amount to criminal contempt. This is not least because, if the English courts would themselves grant ASI or AASI in materially equivalent circumstances, they should not sanction a litigant for seeking such relief elsewhere. So said the Court of Appeal in BHP Group (UK) Ltd & Anor v Municipio de Mariana & Ors [2026] EWCA Civ 294, overturning the finding of the first instance judge.

Summary of the facts

Certain Brazilian Municipalities (the “MCs”), sued BHP and others for damages arising out of the collapse of the Fundão Dam. One of the issues to be determined in the “Stage One” trial of the proceedings was whether the MCs were precluded from bringing proceedings outside Brazil because to do so would amount to a waiver of immunity from foreign suit, which BHP argued only the Federal Government could grant. Alternatively, BHP argued that the MCs lacked standing to bring the proceedings because their interest could only be represented by the Federal Government.

Four months before the Stage One trial, and without notice to the MCs, the Brazilian Mining Association, “IBRAM”, of which BHP was a member, commenced a constitutional law claim in the Brazilian Supreme Federal Court. By way of this claim, IBRAM sought: (i) a declaration that the position adopted by the MCs was contrary to fundamental constitutional precepts (in the way argued by BHP in the English proceedings); and (ii) an order that the MCs discontinue claims abroad. A key feature of this type of constitutional claim was that it could not be withdrawn once filed. The claim would be decided by the Supreme Court unless it chose not to do so on its own initiative.

BHP acceded to an application for ASI in the English proceedings, committing to refrain from taking any steps to assist the IBRAM Claim, and to request that IBRAM take no further action to pursue the claim. BHP complied with its obligations, but the IBRAM claim nonetheless continued. The MCs issued an application against BHP for criminal contempt, saying that, by procuring the commencement and funding of the IBRAM claim, BHP’s purpose was to interfere with the administration of justice.

Criminal contempt

For conduct to be characterised as a criminal (rather than civil) contempt, it must go beyond mere non-compliance with a court order or undertaking, requiring a serious interference with the administration of justice (and see R v O’Brien [2014] UKSC 23). Relying in particular on Attorney General v Times Newspapers [1974] AC 273, Popplewell LJ, giving an opinion with which Carr CJ and Phillips LJ agreed, summarised the relevant principles as:

• • A criminal contempt involves an interference with the public interest in the administration of justice. The administration of justice generally requires that: (a) a litigant’s access to either the civil or criminal courts is not impeded; (b) the dispute is determined by a tribunal free from bias, whose decision will be based upon those facts only that have been proved in evidence; and (c) once the dispute has been submitted to a court of law, the litigant should be able to rely upon there being no usurpation by any other person of the function of that court to decide it according to law.
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  • It may be necessary to show the alleged contemnor intended to interfere with the interests of justice.
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  • The conduct need not have the effect of interfering with the administration of justice, but there must be a sufficient risk that it will do so.
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  • The taking of steps to hinder or prevent a litigant from pursuing their claim is conduct falling within the scope of criminal contempt. However, not all such steps will amount to contempt. The dividing line is whether the conduct is improper even if it would otherwise be lawful.
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  • Conduct may be undertaken for mixed motives. It is not necessary that the improper purpose be the sole or dominant purpose or motive for undertaking the conduct in question

ASI/ AASI relief

Popplewell LJ derived five propositions from the case law as to whether and when foreign anti-suit proceedings should be characterised as a contempt of court:

• • If the English courts would themselves grant ASI or AASI relief in materially equivalent circumstances, it would be contrary to principle to treat the equivalent conduct in a foreign court as criminal.
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  • The English courts recognise that there is no universal consensus as to the private international law rules governing assumption of jurisdiction over disputes. Comity requires respect for different juridical bases adopted by other civilised nations.
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  • The appropriate sanction for breach of an ASI or AASI in England is civil contempt for disobedience to the order: the differences between the civil and criminal law of contempt do not justify both forms of sanction being available. The law of criminal contempt is solely concerned with the public interest; whereas ASI relief is only ever granted if justified by reference to the private interests of litigants.
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  • The law of criminal contempt is limited to what is reasonably necessary for the purpose of protecting the public interest in the administration of justice. Comity strongly militates against criminalising conduct consisting of invoking the jurisdiction of a foreign court.
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  • Seeking foreign ASI relief could only exceptionally amount to criminal contempt.

Conclusion

Popplewell LJ concluded that BHP’s conduct did not fall within the exceptional category required for criminal contempt. In particular, Popplewell LJ found it difficult to reconcile the submission that the timing of IBRAM’s claim made a difference to whether there had been a criminal contempt. Essentially, the MCs accepted that, had IBRAM filed its claim at the outset of the proceedings, no question of contempt would have arisen. This was even though, regardless of when the claim was filed, the ability of an MC to access the Court would have been hindered. In this respect, Popplewell LJ remarked that: “All that the timing affects is the consequential degree of interference in the court’s processes which results. If the mens rea and actus reus is the same in the two cases, it is difficult to see how as a matter of principle one can be criminal contempt and the other not.”