A mining giant has failed to strike out a contempt action against it over the ‘zeal’ with which the founder of collective action firm Pogust Goodhead is prosecuting the case.
BHP Group had argued Pogust Goodhead was unsuitable as a guardian of the public interest, pointing to comments made by its chief executive Tom Goodhead on a legal podcast, in which he said he wanted to be the company’s ‘absolute worst nightmare’.
Pogust Goodhead has brought a group action on behalf of 620,000 Brazilian claimants over the 2015 Mariana dam disaster in southeastern Brazil.
Claimant group Brazilian Municipalities filed for contempt against BHP in October and Goodhead had accused the company of ‘lawfare’ in a post, something BHP also pointed to in its strikeout application. But BHP’s attempt to have the contempt application struck out was dismissed by the High Court today.
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Mr Justice Constable said there were ‘reasonable grounds’ to suspect BHP had secretly agreed with a Brazilian mining industry lobby group to fund a challenge in the Brazilian Supreme Court with the intention of forcing the London claim to be withdrawn.
‘The question of whether the allegation is made out beyond reasonable doubt is for another day. Were it to be, however, it would be difficult to conclude that Mr Goodhead’s view was a wholly unjustified one’, Constable said.
‘It is a reality that litigation of the nature of the main proceedings spills into assertions and counter-assertions played out to some extent outside the courtroom and as part of a public relations battle. Lawyers certainly need to be conscious that in engaging in dialogue about the merits of a case yet to be heard, they must not cut across their duties to the court, specifically in the context of bringing criminal contempt proceedings.
‘I do not regard, however, the post from Mr Goodhead, or the fact that Mr Goodhead has gone on record generally to describe the zeal with which he pursues his clients’ cases, as sufficient so as to demonstrate that either the MCs or PG are inherently incapable of prosecuting the Contempt Application with the appropriate detachment in court.'
