Extending criminal contempt to foreign proceedings would open floodgates, BHP warns

Extending the law on criminal contempt to cover a party’s conduct in foreign proceedings would ‘open the floodgates’ to applications and 'lead to adverse practical consequences’, global mining giant BHP has told the Court of Appeal.

The hearing, before the lady chief justice, Lord Justice Popplewell and Lord Justice Phillips, is the latest in a long course of litigation over the 2015 Mariana dam collapse, one of Brazil’s worst environmental disasters. 

BHP seeks permission to appeal a court order refusing its application to strike out contempt proceedings brought against it over litigation in the Brazilian Supreme Court. Claims firm Pogust Goodhead, acting for victims of the dam collapse, argued that the Brazilian case would impact on its ability to continue litigation in the English courts. BHP denies any allegations of criminal contempt.

In the permission to appeal hearing at the Royal Courts of Justice, Andrew Scott KC, for BHP, said: ‘We accept there may be cases in which the effect of conduct is also to hinder a litigant [or] is to prevent court discharging its function of administering justice. Those situations are all very far removed from the case of seeking an anti-suit injunction.'

In written submissions, Scott said: ‘The issue is whether procuring and funding a foreign proceedings that seeks anti-suit injunctive relief in relation to English proceedings can amount to the actus reus of criminal contempt. There is no English authority that such conduct amounts to criminal contempt. The novel and important nature of the issue raised is such that there is in any case a “compelling reason” for this court to consider it, such that permission ought to be granted.’

He added: ‘To extend the law on criminal contempt to a party’s conduct in foreign proceedings would likely lead to adverse practical consequences. It would open the floodgates to criminal contempt applications in cases involving international litigation, because the fact patterns which give rise to anti-suit injunctions will often support an allegation that the foreign proceedings were intended to obstruct or interfere with the English litigation.

‘A flood of criminal contempt applications would not serve the public interest.’

Referring to BHP’s ‘floodgates’ submission, Oliver Caplin KC, for the claimants, said a ‘large deluge of claims’ was ‘very unlikely’. 

In written submissions he added: ‘It is difficult to conceive of a more serious, egregious, and cynical interference with the administration of justice than the conduct of which BHP is accused by the [claimants]. It is a paradigm example of a case to which the law of criminal contempt should respond.'

Judgment was reserved.