Contempt proceedings struck out

The appeal was among The Lawyer’s Top 10 Appeals of 2026. It concerned the issue "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” (CA Judgment, [1]).

Shortly before the Stage 1 trial before the Technology and Construction Court (“TCC”) in October 2024, the Municipality Claimants (the “MCs”) brought contempt proceedings against the Defendants (“BHP”) alleging that they had procured and agreed to fund a claim by a Brazilian trade association (“IBRAM”) before the Brazilian Supreme Federal Court (the “STJ”) which sought (among other relief) a declaration that Brazilian municipalities have no standing to sue outside Brazil and an ASI whereby those municipalities would be restrained from pursuing such proceedings (the “IBRAM Claim”). That was alleged to have been done for the purpose of interfering with the administration of justice by the TCC and preventing or hindering the MCs’ pursuit of their claims before it, and on that basis to amount to a criminal contempt.

BHP applied to have the contempt proceedings struck out on grounds including that the conduct alleged did not amount to criminal contempt. Constable J dismissed the application: [2025] 1 WLR 5297.

The Court of Appeal allowed BHP’s appeal. Popplewell LJ (with whose judgment Phillips LJ and Lady Chief Justice Carr agreed) held that the conduct alleged did not fall within the exceptional circumstances in which seeking ASI or AASI relief abroad could amount to criminal contempt.

Popplewell LJ reviewed the authorities on criminal contempt, holding that it involves an interference with the public interest in the administration of justice; and that although taking lawful steps to hinder or prevent a litigant from pursuing their claim could amount to criminal contempt, that would only be the case where those steps are "improper" ([31]-[49]).

Popplewell LJ held that in assessing what steps are "improper" in the context of international litigation, it was necessary to have regard to the principles to be derived from English jurisprudence on granting ASIs and AASIs ([50]-[65]. His Lordship concluded (at [65]) that:

“… these principles point to the conclusion that seeking foreign ASI could only exceptionally amount to criminal contempt. In circumstances where our ASI jurisprudence would not justify the grant of an ASI or AASI, the foreign proceedings cannot be regarded as improper. In circumstances where our ASI jurisprudence would justify such relief and an ASI or AASI is granted, the appropriate sanction is civil contempt for disobedience to the order. In the rare case where our ASI jurisprudence would justify the grant of relief but it is not available as an effective remedy, criminal contempt will not be an appropriate sanction, save perhaps in exceptional circumstances, because what justifies ASI relief is protection of the interests of litigants, in contradistinction from the law of criminal contempt which is solely concerned with the public interest in protecting the administration of justice; and it will only be in exceptional cases that it is necessary to extend the law of criminal contempt to protect that public interest when comity is taken in account."

Popplewell LJ held that the MCs had correctly conceded before the Court of Appeal that BHP’s alleged conduct would not have amounted to criminal contempt had the IBRAM Claim been brought at the outset of the TCC proceedings ([66] and [67]). His Lordship rejected the MCs’ arguments that it made a difference that the IBRAM Claim was brought close to the Stage 1 trial and other matters they relied on, none of which made BHP’s alleged conduct improper so as to engage the law on criminal contempt ([68] to [73]).

A copy of the judgment is here.

Andrew Scott KC and Daniel Burgess appeared before the Court of Appeal for BHP instructed by Herbert Smith Freehills Kramer LLP.