03/12/2025

Pogust Goodhead successfully resists anti-suit injunction claim from BHP

In another judgment emanating from the Mariana Dam litigation, Pogust Goodhead has successfully resisted a claim by BHP for an anti-suit injunction to restrain it from continuing with proceedings in Arkansas under section 1782 of Title 28 of the United States Code (the s.1782 proceedings).

The judgment by Waksman J in BHP Group (UK) Ltd and BHP Group Limited v PGMGM Law Ltd [2025] EWHC 3153 (TCC) dismisses BHP’s claim.

The case will be of interest generally to those who seek or face s.1782 proceedings and wish to understand the circumstances in which such proceedings will, and will not, be amenable to an anti-suit injunction.

Oliver Caplin KC and Alicia Lawson acted for the successful defendant, Pogust Goodhead.

The s.1782 proceedings

In January 2025, Pogust Goodhead (PG) had obtained subpoenas enabling it to depose a Mr André de Freitas. PG’s position was that Mr de Freitas is likely to have evidence relevant to the £1.3 billion claim it has intimated against BHP in a Letter before Action dated 24 July 2025.

BHP intervened in the s.1782 proceedings. Between March 2025 and June 2025, BHP progressed a motion to quash the subpoenas, culminating in a half-day hearing of that motion before Chief United States District Judge Kristine Baker. After that hearing, but before Judge Baker had delivered a judgment, BHP issued a claim in the UK Technology and Construction Court for an anti-suit injunction (ASI) to (in substance) restrain enforcement of the subpoenas.

The ASI claim

BHP claimed a final ASI against PG. It alleged that the s.1782 proceedings were vexatious and oppressive, and so ought to be restrained. They contended that PG’s use of the s.1782 procedure would expose Mr de Freitas to vexatious ‘double cross-examination’ via first a deposition in Arkansas and then cross-examination in London. They also contended that Mr de Freitas’s undertaking to give evidence in London obviated the need for the s.1782 proceedings.

PG contended that its pursuit of the subpoenas was not vexatious and oppressive. Its claim against BHP in London was at a pre-action stage. It was entitled to take advantage of the s.1782 procedure to be able to better plead out its claim against BHP in due course.

It also contended that in any event, BHP had unjustifiably delayed bringing its ASI claim, and that its conduct in first pursuing the motion to quash in Arkansas precluded an ASI in England on discretionary grounds, including comity with the Arkansas Court and Judge Baker.

Waksman J’s decision

Waksman J dismissed the ASI claim. His main reason was that PG’s conduct in pursuing the s.1782 proceedings was not vexatious and oppressive. The judge accepted that PG had a legitimate interest in accessing the s.1782 procedure to potentially improve its ability to plead out its claim against BHP. Obtaining Mr de Freitas’s evidence at pre-action stage served a distinct purpose from obtaining it at trial.

The judge did not agree that there was a risk of exposing Mr de Freitas to ‘double cross-examination’, in the sense of exposing him (vexatiously or at all) to two identical and proximate examinations in both Arkansas and London. The London proceedings were a long way off, and any risk of prejudice to BHP if Mr de Freitas refused to provide oral testimony for a second time in London was either small or speculative. The undertakings to give evidence in London did not change the position.

Waksman J also determined that even if PG’s conduct had been vexatious and oppressive, he would as a matter of his discretion not have granted an ASI. He considered that, even though s.1782 proceedings exist to assist foreign courts, questions of comity were still relevant. Here, BHP’s conduct in pursuing the motion to quash in Arkansas first, and only then coming to the TCC for an ASI, was fatal. So too was its general culpable delay in seeking the ASI. The latter is a timely reminder that delay can defeat an otherwise good claim to an ASI.

Oliver and Alicia were instructed by Mark Beeley, Adam Rizzo, David Shipton and Christopher Lippert at Orrick, Herrington, Sutcliffe (UK) LLP.