Temple Garden Chambers is a leading common law set based in London and The Hague.
With excellence from top to bottom Chambers provides a first class service in a number of different fields.
Temple Garden Chambers is a leading common law set based in London and The Hague.
With excellence from top to bottom Chambers provides a first class service in a number of different fields.
27/06/2025
The Technology and Construction Court (TCC) has ruled that it was reasonably arguable that BHP had committed a criminal contempt by procuring foreign proceedings in Brazil which were designed to prevent claimants who were currently suing BHP in the TCC from contacting their lawyers, Pogust Goodhead, about their claims and preventing them from taking any further steps in the TCC proceedings. Constable J dismissed BHP’s strike out application finding that there were reasonable grounds for bringing the contempt application and that they were not an abuse of process.
The contempt application was part of the long-running litigation brought by hundreds of thousands of Brazilian Claimants seeking compensation for losses caused by the tragic Fundao Dam Collapse, Brazil’s worst ever environmental disaster. Having fought and lost an extensive fight over the English Court’s jurisdiction to hear the claim, the Mining Company Defendants, BHP procured the Brazilian Mining Association “IBRAM” to file a claim in the Brazilian Supreme Court seeking relief that would have blocked Brazilian local municipalities who were claimants in the TCC Proceedings from access to court and access to legal representation in England.
Constable J found that such conduct could constitute a criminal contempt by way of interference with the administration of justice. The fact that foreign litigation could be the subject of an anti-suit injunction did not prevent the court from also sanctioning such conduct as a contempt. Nor did the contempt proceeding constitute an abuse of process under the Henderson v Henderson rule against multiple proceedings, even though BHP’s conduct had also been the subject of an earlier anti-suit injunction which was compromised by agreement between the parties.
Applying the broad merits-based test per Johnson v Gore-Wood , bringing the contempt proceeding separately was not abusive, taking into account a range of factors including the way both parties had conducted the anti-suit injunction application. The court was particularly critical of partial disclosures made by BHP in the course of the anti-suit injunction application, which meant that the Municipality Claimants only learnt of the full details of BHP’s involvement in the foreign proceedings in Brazil until after the anti-suit injunction application had been compromised.
Constable J found that the contempt proceedings were in the public interest and that this also weighed against a finding that they were abusive.
Accordingly, BHP’s strike out application was dismissed. The contempt application will now be heard by the Divisional Court.
Professor Andrew Higgins of Temple Garden Chambers acted as junior counsel for the Municipality Claimants with Charlotte Elves and was led by Fiona Horlick KC.
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