BHP Group (UK) Ltd & Anor v. Município de Mariana1
What is an anti‑suit injunction?
An anti-suit injunction (ASI) is a court order restraining a party from initiating or continuing proceedings in a forum other than that in which the injunction is given. A party who fails to comply with such an order given by the English court is in contempt of court, though the gravity of the contempt and the associated penalties will depend on the circumstances. In the most severe cases, the contempt may be criminal in nature, exposing the relevant companies or their controlling minds to fines or even imprisonment.
Background
The present case concerned a mass tort claim brought by 600,000 Brazilian claimants for losses suffered following the collapse of the Fundão Dam in southeast Brazil on 5 November 2015. The vast majority of the claimants were individuals but they also included some 47 public authorities, referred to as the Municipality Claimants (MCs). The litigation was brought in the English court, against entities in the BHP Group (BHP), being one of the joint operators of the dam. BHP challenged the English court's jurisdiction over the claims but that challenge was rejected in a Judgment of the Court of Appeal in July 2022. The Court had personal jurisdiction over the BHP Defendants, being entities either domiciled or registered in England, and it held that there were no reasons of forum conveniens to favour another jurisdiction. A staged trial of the litigation was ordered, with stage 1 to commence in the Autumn of 2024.
Parallel proceedings in Brazil
In the meantime, in June 2024, BHP caused parallel proceedings to be brought in the Brazilian Supreme Federal Court. The claimant in that litigation was not BHP itself, or any of its subsidiaries, but rather the Brazilian Mining Association (IBRAM), of which a BHP subsidiary was a member. Nevertheless, it was accepted that the litigation was procured by BHP and that BHP had agreed to fund IBRAM's costs in pursuing it. IBRAM's claim sought an order from the Brazilian court that the MCs had no standing to bring their claims in any jurisdiction other than Brazil, together with an interim injunction, pending full trial, prohibiting the MCs from taking any steps in the prosecution of any foreign proceedings.
The English court anti‑suit injunction
This prompted the MCs to apply to the English court for an ASI, seeking to prevent BHP from taking any further steps to promote or encourage the IBRAM claim. An order was subsequently given in the English court by which BHP was obliged to desist in its support of the IBRAM claim. BHP also undertook to request that IBRAM take no further steps in pursuit of the interim injunction sought in Brazil.
This did not, however, bring an end to the IBRAM claim, which could no longer be halted at the behest of BHP. Indeed, by March 2025, IBRAM had brought a renewed application for interim relief, leading to an order of the Brazilian court prohibiting the MCs from paying any fees to foreign lawyers in the pursuit of litigation outside Brazil.
The MCs brought an application in the English court for a finding of criminal contempt of court by BHP. They argued that, by procuring the commencement and funding of the IBRAM claim, BHP had sought to interfere with the administration of justice by preventing or hindering the MCs' pursuit of their claims in England.
In the context of that application, the English court and subsequently the Court of Appeal had to determine the following question: "whether, and if so when, procuring an anti-suit injunction (‘ASI') or anti-anti-suit injunction (‘AASI') from a foreign court, which is intended to restrain or hinder the pursuit of claims in England and Wales, can amount to a criminal contempt of court".
The Court of Appeal’s decision
In a judgment handed down on 16 March 2026, the Court of Appeal rejected BHP's argument that taking lawful steps to hinder or prevent a litigant from pursuing their claim in the English court could never amount to criminal contempt. However, the Court agreed that this would only be the case where those steps were "improper" and that such a finding of impropriety would be restricted to those cases where a civil sanction for breach of the ASI provided no effective remedy. The Court noted that, while civil contempt was concerned with protecting the interests of litigants, the concept of criminal contempt was concerned with the public interest in protecting the administration of justice. Consequently, "it will only be in exceptional cases that it is necessary to extend the law of criminal contempt to protect that public interest..."
In arguing that BHP's conduct constituted criminal contempt, the crux of the MCs' case was not the fact of the AASI relief sought in the Brazilian court, but rather its timing. Coming just four months before the stage 1 trial in the English court, the MCs described this as "an action strategically initiated at a time which could cause maximum disruption to the Municipality Claimants' claims". The Court of Appeal held that the timing of the IBRAM claim, though it may have been strategic, did not put the case into the exceptional category. Accordingly, the MCs' application for a finding of criminal contempt was struck out.
Outcome and wider implications
While BHP was the successful party in relation to the contempt dispute, ultimately its efforts to remove the case from the English jurisdiction, both by means of an order of the English court (as against all claimants) or the Brazilian court (as regards the MCs) were unsuccessful. The trial of the substantive claim went ahead in the English High Court, in a hearing lasting from October 2024 to March 2025. In November 2025, the Court handed down judgment, finding BHP liable to the claimants (including the MCs) for the consequences of the dam collapse. BHP sought permission to appeal, which was declined by the High Court in January 2026, though it is understood that it is currently pursuing a renewed application for permission to appeal to the Court of Appeal.
The wider case highlights the extent to which multinational companies with a domicile or registration in England must pay close attention to the activities of overseas subsidiaries and joint ventures, against the risk of being held accountable in the English courts.
[1] [2006] EWCA Civ 294
