27/03/2026

Court of Appeal allows strikeout appeal in Fundão Dam contempt proceedings

BHP Group (UK) Ltd & Anor v Municipio de Mariana & Ors [2026] EWCA Civ 294 relates to proceedings for criminal contempt brought against BHP by certain Brazilian municipalities in connection with the Fundão Dam litigation. The judgment, issued earlier this month, will be of interest to anyone involved in complex cross-border disputes in which there is concurrent litigation in both this jurisdiction and another one.

The Court of Appeal was asked to decide whether, and if so, when, procuring an anti-suit or anti-anti-suit injunction abroad to restrain proceedings in this jurisdiction, could amount to a criminal contempt of court [1]. Allowing the appeal, the court decided that it could, but only in exceptional circumstances, which the case did not contain.

Oliver Caplin KC and Alicia Lawson appeared before the Court of Appeal for the municipality claimants. This appeal was one of the Lawyer magazine’s Top 10 appeals of 2026.

The first instance proceedings

BHP is the defendant in proceedings in England brought by over 600,000 claimants, including 46 Brazilian municipalities, for damages caused by the catastrophic collapse of the Fundão Dam in 2015 (the Fundão litigation). Whether the municipality claimants had capacity and standing to litigate abroad was due to be determined in the Fundão litigation at a stage 1 trial.

Shortly before the start of the stage 1 trial in England was due to begin, Brazilian mining association IBRAM initiated proceedings before Brazil’s supreme court, the STF, seeking to restrain the municipality claimants from continuing the Fundão litigation, or from having any further dealings with their English lawyers (at all). Due to the nature of constitutional claims in Brazil, the IBRAM claim is not capable of being restrained by an AASI: once it is started, it cannot be withdrawn.

BHP admitted to having procured the IBRAM claim. The municipality claimants brought criminal contempt proceedings against BHP, which BHP applied to strike out. Constable J rejected the strike out application in June 2025: [2025] EWHC 1601 (TCC). BHP then appealed Constable J’s decision.

The appeal

The Court of Appeal (Popplewell LJ, with the Lady Chief Justice and Phillips LJ agreeing) conducted a review of criminal contempt authorities [31–49], before considering ASI and AASI jurisprudence [50–59], including the importance of comity.

The court agreed with the municipality claimants that:

• taking steps to hinder or prevent a litigant from pursuing their claim can amount to criminal contempt [49(4), 49(6)];
• such steps may be rendered contemptuous by reason of the improper purpose for which they are taken [48, 49(7)];
• seeking ASI relief from a foreign court can be categorised as improper for the purposes of the criminal law of contempt, in exceptional circumstances [65, 76].

Its reasoning on the need for exceptionality was: “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.” [65].

However, on the facts of this case, the court held that the requisite exceptionality did not exist [69–73].  It did not consider that BHP’s procurement of the IBRAM claim four months before the start of the stage 1 trial was exceptional. The fact that the IBRAM claim was unstoppable (and not amenable to an English AASI) was not sufficient to change that. Similarly, while the part of the IBRAM claim that sought to injunct the municipality claimants’ communications with their lawyers was “unusual”, it too was not exceptional.

The judgment leaves open the question as to what, in the future, might amount to exceptional circumstances.

The Court of Appeal having refused permission to appeal, the municipality claimants have approval to apply for permission to appeal from the Supreme Court.

Oliver Caplin KC and Alicia Lawson were instructed by Pogust Goodhead, alongside Professor Andrew Higgins of Temple Garden Chambers and Charlotte Elves of Outer Temple Chambers.