HT-2022-000304 - [2025] EWHC 1601 (TCC)

As a corollary of the public nature of proceedings for criminal contempt, Mr Scott KC contends that the Court must be satisfied that the applicant is an appropriate guardian of the public interest. BHP also submits that the MCs and their solicitors, PG, would not be appropriate guardians of the public interest.

In TBD (Owen Holland) Ltd v Simons & Ors [2020] EWCA Civ 1182, the Court of Appeal endorsed the following observations of Andrew Baker J in Navigator Equities Ltd v Deripaska [2020] EWHC 1798 (Comm):

“142.

One consequence I have already identified, namely that the court recognises the particular capacity of contempt applications or the threat of contempt applications to be used vexatiously by litigants to further interests that it is not the function of the contempt jurisdiction to serve. That leads to the obvious materiality, at all events if there is some reason to question it on the facts of a given case, of the ‘prosecutorial motive’ of a claimant/applicant pursuing a contempt charge...

143.

A further consequence is that the claimant/applicant pursues a contempt charge as much as quasi-prosecutor serving the public interest as it does as private litigant pursuing its own interests in the underlying dispute. The claimant/applicant needs to understand that; and if it is legally represented, as here, the legal representatives need to understand that their role as officers of the court is acutely pertinent, even if (to repeat) the process is not to be equated with a private prosecution in a criminal court. Thus, it appears to have struck Teare J as obvious in the long-running Ablyazov litigation that the quasi-prosecutorial role of the claimant/applicant in pursuing a contempt charge means its proper function is to act generally dispassionately, to present the facts fairly and with balance, and then let those facts speak for themselves, assisting the court to make a fair quasi-criminal judgment: JSC BTA Bank v Ablyazov [2012] EWHC 237 (Comm) at [15].”

Ms Horlick KC argues that there is no ‘guardian of the public interest’ test when permission to bring proceedings is not required. She relies upon the judgment of Carr LJ (as she then was) in Navigator Equities Ltd v Deripaska [2021] EWCA Civ 1799 to argue that private applicants bringing criminal contempt proceedings should not be required to don the mantle of a prosecutor acting dispassionately and solely in the public interest. However, this is to overstate the position. In Deripaska, the application was one for civil contempt. Carr LJ (as she then was) explicitly drew a distinction with criminal contempt. At [118], she observed, in relation to KJM Superbikes Ltd v Hinton (Practice Note) [2009] 1 WLR 2406:

“KJM confirms that permission to a person to pursue public law proceedings allows that person to act in a public rather than a private role, to pursue the public interest. The court will therefore be concerned to satisfy itself that the case is one in which the public interest requires that the committal proceedings be brought and that the applicant is a proper person to bring them (see paras 9, 11, 16, 28 and 29). Those considerations do not arise in a private application for civil contempt and for which no permission is required.”

The Court also pointed out that TBD, in which the paragraphs from Andrew Baker J’s first instance judgment quoted above were approved, was in the context of an application to bring criminal contempt proceedings (during the course of ongoing proceedings), as here.

Although no permission is required to bring the application for criminal contempt in the present case, it does not mean that the Court cannot look to the fitness of the applicant given the quasi-prosecutorial nature of the application when considering whether the application should be struck out.

Mr Scott KC identifies the fact that the MCs are parties to ongoing proceedings against BHP and there is therefore an inherent risk that the MCs are pursuing the Contempt Application for collateral purposes in the context of their private interests rather than any public interest. Whilst the Court must be astute to guard against vexatious applications, the mere fact that the party bringing the application is a party to proceedings with the other does not mean that the applicant cannot be a proper person. Indeed, in KLM, Moore-Bick LJ observed (at [17]) that the applicant will usually be a party to the proceedings in respect of which the criminal contempt relates (in that case the making of a false statement). It also follows that, similarly, the mere existence of a collateral benefit in the context of those proceedings in bringing the contempt application does not of itself render a party unfit. Neither of these matters precludes a party from acting dispassionately, to present the facts fairly and with balance, and then let those facts speak for themselves, assisting the Court to make a fair quasi-criminal judgment.

The second feature relied upon is the timing of the Contempt Application. I have dealt with this above. It was, once issued, dealt with in a manner consistent with avoiding disruption to, and any distraction to BHP from, the Main Proceedings. The timing was, at least in part, reflective of the timing of the IBRAM Claim and the period of time over which information about BHP’s involvement was provided.

The third contention relates back to BHP’s argument that this application for contempt is abusive in that it is re-litigating the compromised ASI Application. I do not agree for the reasons I have given. Mr Scott KC argues that even if the abusive re-litigation argument fails, as it has done, this Contempt Application should be seen as part and parcel of the MCs’ litigation strategy. Providing there is public interest in doing so, which will usually be the position where the alleged contempt is a serious one such as interfering in the administration of justice, and where the application is not vexatious, the existence of other potential remedies in the context of the ongoing proceedings does not preclude an applicant from being a fit one.

Fourth, BHP contends that the bringing of the application must be seen against the context of what it says are repeated baseless allegations of contempt against BHP. The matters complained of are set out in Mr Michael’s twenty-sixth statement at paragraphs 33-35. As to these:

I do not therefore consider that this correspondence demonstrates that the MCs or PG have acted in a manner unfit to bring the Contempt Allegation. A party and its lawyers bringing such an application must, when also involved in underlying substantive proceedings, wear two hats. The fact they must, in pursuit of its Contempt Application, present the facts fairly and with balance, and then let those facts speak for themselves, does not of itself mean that they are necessarily neutered when robustly but appropriately protecting their interests in any wider litigation.

Next, BHP argue that PG have made public statements about the Consent Order and the Contempt Proceedings which were misleading, inflammatory, partisan and incomplete. It is said that PG are not therefore suitable to represent the MCs in a quasi-prosecutorial and dispassionate manner. To support this submission, at paragraph 51 of Mr Michael’s twenty-sixth statement, he identifies three social media posts from PG. He is correct that, in one respect, one of the posts was wrong: it said that the English Courts required BHP to sign the Consent Order, which of course they did not. Otherwise, the posts are not of themselves objectionable, and do not of themselves impinge on the requirement, or ability, of PG to present the facts in the Contempt Application to the Court with appropriate restraint and fairness (as it has done in the evidence served in support of the Contempt Application, and to rebut the Strike Out Application).

BHP also rely upon a post by Mr Goodhead said to be ‘misleading’ by describing IBRAM as a front group engaging in bad faith litigation, and describing BHP as conducting ‘lawfare’. The allegation at the heart of the Contempt Application is that IBRAM was asked by BHP to bring the IBRAM Claim specifically in the context of the Main Proceedings, was funded solely by BHP, and which sought amongst other things Interim Relief specifically in order to interfere with the MCs’ ability to conduct that litigation through lawyers, in this country. I have determined that there are reasonable grounds to make that allegation. The question of whether the allegation is made out beyond reasonable doubt is for another day. Were it to be, however, it would be difficult to conclude that Mr Goodhead’s view was a wholly unjustified one. It is a reality that litigation of the nature of the Main Proceedings spills into assertions and counter-assertions played out to some extent outside the Courtroom and as part of a public relations battle. Lawyers certainly need to be conscious that in engaging in dialogue about the merits of a case yet to be heard, they must not cut across their duties to the Court, specifically in the context of bringing criminal contempt proceedings. I do not regard, however, the post from Mr Goodhead, or the fact that Mr Goodhead has gone on record generally to describe the zeal with which he pursues his clients’ cases, as sufficient so as to demonstrate that either the MCs or PG are inherently incapable of prosecuting the Contempt Application with the appropriate detachment in Court.

In these circumstances, I reject BHP’s contention that the Contempt Application should be struck out because the MCs and/or PG are unsuitable as guardians of the public interest.

BHP’s application to strike out the Contempt Application therefore fails. The Contempt Application will be heard by the Divisional Court.