UK Court of Appeal refuses to extend criminal contempt to foreign anti-suit injunctions

Introduction

In a judgment handed down on 16 March 2026, the Court of Appeal struck out a criminal contempt application brought against BHP Group (UK) Ltd and BHP Group Limited (“BHP”). The decision appears to be the first, in any common law jurisdiction, in which a court has ruled on whether seeking an anti-suit injunction (“ASI”) or anti-anti-suit injunction (“AASI”) from a foreign court can amount to criminal contempt.

Background

The appeal arose in the context of proceedings in the English Technology and Construction Court (the “TCC”), brought in relation to the collapse of the Fundão Dam in southeast Brazil in 2015. There are well over 600,000 claimants in the TCC proceedings, including individuals, businesses, and 46 Brazilian municipalities, who were the Respondents in this appeal (the “MCs”).

Following the commencement of the TCC proceedings in November 2018, BHP raised a “Standing Issue”, in which it alleged that the MCs lacked standing to pursue claims outside Brazil. The Standing Issue was selected for determination at a first stage trial. Although the procedural timeline is complex, the relevant procedural steps leading up to the appeal are provided below:

• On 11 June 2024, four months before the TCC was due to determine the Standing Issue, the Brazilian Mining Association, Instituto Brasileiro de Mineração (“IBRAM”), filed a claim in the Brazilian Supreme Federal Court (the “STF”) at BHP’s instigation and expense (the “IBRAM Claim”). In bringing this claim, IBRAM sought both final and interim relief, including: (i) as final relief, an order that the MCs discontinue their claims abroad, including in the TCC; and (ii) as interim relief, an immediate suspension of any dealings between Brazilian municipalities and foreign law firms in connection with overseas litigation, and an order that the MCs request the suspension of their ongoing foreign proceedings.
• On 7 October 2024, the MCs issued an application against BHP for criminal contempt of court on the basis that BHP’s purpose in pursuing the IBRAM Claim was to interfere with the administration of justice by hindering the claims being brought in the TCC (the “Contempt Application”).
• On 12 December 2024, BHP issued an application to strike out the Contempt Application (the “Strike Out Application”).
• On 5 June 2025, the Strike Out Application was heard by Mr Justice Constable, who dismissed it by an order of 26 June 2025.
• BHP appealed the dismissal of the Strike Out Application, which was determined by the Court of Appeal following a hearing on 20 January 2026.

Relevant Authorities

In the judgment¹, before turning to the question of foreign ASI relief, Popplewell LJ conducted a survey of the authorities relating to criminal contempt and considered the domestic jurisprudence on the grant or refusal of ASIs and AASIs. Most notably, he identified that criminal contempt is concerned solely with the public interest in the administration of justice, and that conduct which is otherwise lawful may nevertheless be rendered “improper” by the purpose for which it is undertaken, making it capable of amounting to contempt. This was illustrated with the analogy of blackmail: while it may be lawful to publish scandalous information about an individual, threatening to do so in order to demand that person drop their claim could amount to a criminal contempt. Popplewell LJ further noted that ASI relief, by contrast, is grounded in the protection of private interests, and is granted either in support of a contractual right, such as an exclusive jurisdiction or arbitration clause, or where foreign proceedings are considered vexatious or oppressive to a litigant.

Having done this, Popplewell LJ articulated five propositions on the application of foreign ASI proceedings to English proceedings, the key tenets of which are set out below:

1. It would be contrary to principle to treat ASI or AASI relief provided by a foreign court as criminal in this country if English courts would grant ASI or AASI relief in equivalent circumstances, should the relevant roles be reversed.
2. English courts recognise that there is no universal consensus on the private international law rules governing jurisdiction, and comity requires respect for the juridical bases of other civilised nations. It follows that a foreign court’s claim to jurisdiction, if made in good faith, should not be treated as “improper” through being criminalised by way of criminal contempt. 
3. Foreign proceedings should not be criminalised as contempt merely because an English court has, or would, grant ASI or AASI relief in response. Additionally, where an ASI or AASI would be granted under English law, the appropriate sanction for disobedience is civil contempt rather than criminal contempt. Popplewell LJ reiterated that the two concepts serve different purposes: ASI relief protects the private interests of individual litigants, while criminal contempt is concerned with the public interest in the administration of justice. From this, Popplewell LJ added that conduct which is “oppressive or vexatious” enough to justify ASI relief should not be equated with conduct that is “improper” for the purposes of criminal contempt.
4. The law of criminal contempt is limited to what is reasonably necessary to protect the public interest in the administration of justice, and that assessment requires a balancing of competing public policy considerations. Acknowledging that jurisdiction battles inevitably arise between different legal systems, Popplewell LJ indicated that comity will weigh against criminalising behaviour that invokes the jurisdiction of another civilised nation (in accordance with that nation’s rules), irrespective of whether those rules operate oppressively or vexatiously to a litigant’s private rights or interests.
5. Finally, Popplewell LJ added: “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 into account.” In doing so, he concluded that seeking foreign ASI relief can only exceptionally amount to criminal contempt.

Application to BHP’s Conduct

Applying these principles to the IBRAM Claim, the Court noted that the STF was a court of competent jurisdiction and would have been a natural forum for the resolution of the Standing Issue. In this regard, Popplewell LJ indicated that had BHP procured the IBRAM Claim many years earlier, it would have been entirely appropriate for the STF to decide that issue in advance of the TCC. In such circumstances, the STF’s decision would have disposed of the Standing Issue in the TCC proceedings given that English courts must address issues of foreign law by reference to what a competent foreign court would hold the law to be. Indeed, the Court acknowledged that if roles were reversed, English courts would be willing to grant ASI relief to prevent a foreign court determining a question arising under English law in advance of the question coming before an English court.

In analysing the requirement that foreign ASI relief is sought in good faith, it was relevant that it had not been suggested that the IBRAM Claim was not properly arguable, in addition to having been brought before a competent court with jurisdiction to determine it. It was also accepted that, had the IBRAM Claim been brought at the outset of the proceedings, it would not have amounted to criminal contempt.

That the purpose of the IBRAM Claim was evidently to prevent the MCs from pursuing their claims against BHP in England was also deemed insufficient to render it “improper”. Even accepting that the IBRAM Claim was “an action strategically initiated at a time which could cause maximum disruption to the Municipality Claimants’ claims” could not render it an "exceptional" case falling within the scope of criminal contempt. Although it was accepted that BHP should have alerted the TCC so that the Standing Issue could have been withdrawn from the stage 1 trial, Popplewell LJ drew a hard line,  concluding that “if the procuring of the claim at the outset would not be sufficient to involve criminal contempt as a matter of principle, as is correctly conceded, I do not see how the timing can make it so.^"

Commentary

The sanctions for criminal contempt include unlimited fines, imprisonment for a maximum of two years² and the confiscation of assets. Against this backdrop, the Court of Appeal’s judgment represents a valuable clarification as to where the boundaries of permissible conduct lie for parties engaged in multi-jurisdictional litigation.

The general rule remains that conduct which is improper and carries a sufficient risk of interference with the public interest in the administration of justice may amount to criminal contempt (even where the underlying act would otherwise be lawful). Applying the judgment, it would appear that the doctrine of criminal contempt will not be engaged provided that any application for ASI or AASI relief is brought:

(i) before a competent foreign court with proper jurisdiction;

(ii) in good faith, i.e., in accordance with (i) above and with a properly arguable case; and

(iii) without an “improper” purpose.

The Court of Appeal’s ruling should provide comfort to parties properly seeking to rely on foreign ASI or AASI relief in that an intention to restrain English proceedings, even if they are already underway, will neither amount to an improper purpose nor prevent a finding of good faith. It may provide further reassurance that disruption to English proceedings resulting from the timing of any ASI or AASI relief sought from foreign courts will similarly fail to bring the pursuit of that relief into the category of the “exceptional” cases capable of attracting criminal sanctions.

As indicated in the judgment, however, the procurement of foreign ASI or AASI relief may exceptionally give rise to criminal liability, and prospective applicants should therefore ensure they give due consideration both to the general rule and to the framework set out by the Court of Appeal in BHP before seeking such relief.