Procuring a claim in a foreign jurisdiction does not usually amount to criminal contempt of the English court, the Court of Appeal has ruled in the long-running litigation over the collapse of the Fundão Dam in Brazil. Allowing global mining giant BHP's appeal and effectively striking out an application for criminal contempt against it, three judges said the company did not act improperly or interfere with the administration of justice in England and Wales by procuring and funding a claim in Brazil. 

Claims firm Pogust Goodhead, acting for the victims of the 2015 dam collapse, had made the application, alleging that BHP was seeking to interfere with the administration of justice by preventing the pursuit of ongoing litigation in the Technology and Construction Court. A previous attempt to strike out the application was dismissed. 

Lord Justice Popplewell, in lead judgment, with whom Lord Justice Phillips and the lady chief justice agreed, said seeking anti-suit injunction relief from a foreign court ‘can be categorised as improper for the purposes of the criminal law of contempt’ but it was ‘only…in an exceptional case that it could do so’. The claim in Brazil could not be considered an ‘exceptional’ case.

He added: ‘It would be contrary to principle to treat something done by way of seeking ASI [anti-suit injunction] or AASI [anti-anti suit injunction] relief in a foreign court as criminal in this country if our courts would positively sanction such conduct by themselves granting ASI or AASI relief in materially equivalent circumstances were the roles reversed.’

Brazil dam claimants

Brazil dam claimants outside the Rolls Building in London

Source: Michael Cross

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A BHP spokesperson said: ‘We welcome the court’s decision to uphold BHP’s appeal, which brings to an end the contempt proceedings that were brought against us.

‘BHP remains confident that the Brazil agreement provides the most effective and efficient solution to compensate those impacted by the dam failure and Brazil is the right place for these issues to be resolved.'

BHP is also seeking permission to appeal the stage 1 liability judgment in the claim, which was handed down last November and found BHP was strictly liable as ‘polluters'. Judgment was reserved following a day-long hearing last week and is expected to be handed down before the end of term.