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

Although this is BHP’s secondary argument, it seems logical to consider this first.

Under CPR 3.4(2)(a), the Court may strike out a statement of case if it appears that it discloses no reasonable grounds for bringing the claim. The burden rests on the applicant to satisfy the Court that the respondent’s statement of case discloses no reasonable grounds.

When considering an application to strike out, the facts pleaded must be assumed to be true and evidence regarding the claims advanced in the statement of case is inadmissible (see Arcelormittal USA LLC v Ruia [2022] EWHC 1378 (Comm) at [29] and the cases cited therein). Consideration of the application will be "confined to the coherence and validity of the claim as pleaded" (Josiya v British American Tobacco plc [2021] EWHC 1743 (QB)). Notwithstanding, the Court retains its inherent power to examine the underlying facts (Ministry of Defence v AB [2012] UKSC 9; [2012] 2 WLR 643 at [149]). As pointed out at [9.48] of Zuckerman on Civil Procedure, justification of dismissal under this rule rests on the concept that no further investigation could provide any appreciable assistance to the task of reaching a correct outcome. It would be wrong to strike out a statement of case that presents an arguable claim or, as made clear in Three Rivers District Council v Governors andCompany of the Bank of England (No.3) [2001] UKHL 16; [2001] 2 All ER 513, at [95], the case raises complex issues of fact or law. Accordingly, as the editors note, a statement of case should not be struck out if it raises an issue in an area of the law that is in a state of uncertainty or development or requires evaluations of public policy or the public interest. This reflects Chief Master Marsh’s observations in Saeed v Ibrahim [2018] EWHC 3 (Ch), [48] where he indicated that ‘a strike out application…is unlikely to be a suitable occasion for… delicate policy issues to be explored and determined.’

BHP’s first point is, effectively, a pleading point. Box 5 of the Contempt Application states that BHP ‘have committedcontempt in the face of the Courtby funding and procuring the initiation of a [the IBRAM Claim]’. The facts relied upon in Box 12 amplify the circumstances of the initiation and funding of the IBRAM claim, largely based upon the chronology set out above.

BHP argue, first, that the conduct complained of does not amount to ‘contempt in the face of the Court’. Irrespective of whether the substance of the matters alleged may nevertheless constitute a criminal contempt (which BHP also deny), it is therefore said simply that the pleaded case is unviable.

BHP is correct that the facts alleged do not, in substance, constitute contempt of a type which is properly described as contempt ‘in the face of the Court’. The distinction between contempt which is ‘in the face’ of Court and that which is not is an important one, at least in some circumstances, because the former is a type of contempt which permits a Court to exercise great powers if necessary – for example the power instantly to imprison a person without trial. It is not necessary in this case to dwell on the precise distinction (not least as noted by the editors of Arlidge, Eady & Smith on Contempt (5^th Edn) at 10-5 that ‘it is inevitably somewhat indistinct’). However, it appears from the authorities discussed at [10-11] to [10-28] of the text referred to above that the key distinction is one of actual or constructive knowledge on the part of the Court of the offending behaviour. As it was put by Laskin J of the Supreme Court of Canada in McKeown v The Queen (1971) 16 DLR (3d) 390, ‘Contempt in the face of the court is, in my view, distinguished from contempt not in its face on the footing that all the circumstances are in the personal knowledge of the court. The presiding judge can then deal summarily with the matter without the embarrassment of having to be a witness to issues of fact…’. Whilst there may be a degree of elasticity as to what might be regarded as being ‘in the personal knowledge of the Court’, the facts alleged against BHP are, if contemptuous at all, clearly not ‘in the face of the Court’.

Whilst BHP are therefore correct in this regard, it is not an answer in circumstances where, in order to meet the complaint, the words ‘in the face of the Court’ should simply be struck out, with the remaining substantive complaint left intact. The question is one of substance. The erroneous adoption of the phrase ‘in the face of the Court’ in the application does not prevent the Court, on this application, from looking to the substance of the application.

A further pleading point, as developed orally, is that even if the words ‘in the face of the Court’ were removed by amendment, the application notice does not allege the specific intent required to find a proper plea of contempt constituting interference in the due administration of justice. Relying upon CPR r.81.4(2)(a) and (h) Mr Scott KC, for BHP, submitted that a person charging contempt must set out in the application notice itself “the nature of the alleged contempt” and “a brief summary of the facts alleged to constitute the contempt, set out numerically in chronological order”. He is undoubtedly right that CPR r.81.4(2) reflects the long-standing recognition in the authorities that the charge should be disclosed with sufficient particularity.

The submission advanced is that this particularity must be found “within the four corners of the notice itself”. For this proposition, Mr Scott KC relies upon Harmsworth v Harmsworth [1987] 1 WLR 1676 (CA) 1683A-D. This pre-CPR case involved an alleged contempt of breach of a non-molestation order. The judge at first instance rejected the submission that particulars of the breach were required to be in the application notice, rather than the supporting affidavit, and concluded that the affidavit provided sufficient particularity of the contempt. The appeal was allowed. Nicholls LJ said:

“So the test is, does the notice give the person alleged to be in contempt enough information to enable him to meet the charge? In satisfying this test it is clear that in a suitable case if lengthy particulars are needed, they may be included in a schedule or other addendum either at the foot of the notice or attached to the notice so as to form part of the notice rather than being set out in the body of the notice itself. But a reference in the notice to a wholly separate document for particulars that ought to be in the notice seems to me to be a quite different matter. I do not see how such a reference can cure what otherwise would be a deficiency in the notice. As I read the Rules and as I understand the decision in Chiltern District Council v. Keane, the Rules require that the notice itself must contain certain basic information. That information is required to be available to the respondent to the application from within the four corners of the notice itself. From the notice itself the person alleged to be in contempt should know with sufficient particularity what are the breaches alleged. A fortiori, in my view, where the document referred to is an affidavit, which does not set out particulars in an itemised form, but which leaves the respondent to the committal application to extract and cull for himself from an historical narrative in the affidavit relevant dates and times and so forth, and to work out for himself the precise number of breaches being alleged and the occasions on which they took place.

I do not think, therefore, that if there are deficiencies in the notice issued on 22 June 1987, those deficiencies should be regarded as having been cured by reason of the references in paragraph (1) to the affidavit attached to the notice and, in paragraph (2), to the affidavit accompanying the notice.”

Mr Scott KC also relies upon Re L (A Child) [2017] 1 FLR 1135 (CA), at [73]-[75] in which Vos LJ could not over-emphasise ‘the importance of any court dealing with an alleged contempt of court….identifying or requiring the party bringing the contempt proceedings to identify precisely the particulars of the contempt with which it is dealing. This is a basic but crucial point’. Consistently, in Navigator Equities Limited v Deripaska [2024] BCC 526 at [48] Carr LJ (as she was then) observed that “…the issue on a committal application is not whether the defendant is guilty of contempt, but whether it is proved to the criminal standard that the defendant is guilty of contempt in the respects set out in the application notice”.

In the present case, Box 5 of the Application Notice (Form N600), sets out that the substantive and interim relief sought in the IBRAM Claim would variously breach the MCs right to a fair trial and/or obstruct the due course of justice or lawful process of the Court, but does not state that this was the intent or purpose of bringing the IBRAM Claim on the part of BHP (or Vale). Similarly, the summary of facts at section 12 of Form N600 does not refer to the purpose or intent of BHP. However, the accompanying Affidavit from Mr Neill does. Following various introductory and background matters paragraph 32 of the Affidavit is preceded by the capitalised heading, ‘GROUNDS FOR CONTEMPT’. There then follows 51 paragraphs, consistent with but in greater detail than, Box 12 of the Form N600. Paragraph 58 describes ‘The Defendant’s purpose in procuring the IBRAM Claim’, and summarises its allegation at paragraph 64 as being, ‘for the purpose of blocking the Municipality Claimants’ right of access to court’ and concludes at paragraph [83], ‘Based on the above evidence it is clear the Defendants have procured the IBRAM Claim, which includes attempts at stopping the Municipality Claimants from speaking with their lawyers (or any lawyer) in relation to these Proceedings, committed to funding it in full, and are still funding and promoting it for the specific purpose of interfering with the administration of justice by this Court.’

Taking the N600 Form with supporting evidence together, it is absolutely clear what actions the MCs allege were carried out by BHP, as is the MC’s contention that these acts were carried out with the specific purposeof interfering with the administration of justice by this Court. True it is that the allegation of intent is found within the ‘GROUNDS FOR CONTEMPT’ section of the accompanying Affidavit. But this is a long way from a case such as Harmsworth in which the alleged contemnor was left to work out for himself the precise number of breaches of a non-molestation order being alleged and the occasions on which they took place. The basic but crucial point of clarity in the allegation to be faced is, at least post-CPR, a point of substance rather than form.

That it is permissible to look to the accompanying Affidavit for particulars of contempt is consistent with CPR Rule 81 itself. The procedural requirements are contained in Rules 81.3 and 81.4. CPR81.3 deals principally with the circumstances in which permission is required, and includes no procedural requirements as to what must be contained within the four corners of Form N600. CPR81.4 is headed, ‘Requirements of a contempt application’. CPR 81.4(1) states that ‘Unless and to the extent that the court directs otherwise, every contempt application must be supported by written evidence given by affidavit or affirmation.’ CPR81.4(2) then provides, ‘A contempt application must include statements of all the following unless (in the case of (b) to (g)) wholly inapplicable.’ The evidence is part of the application, and it would be artificial to ignore it when considering whether the substantive requirement to precisely identify the contempt with which the Court is dealing. No part of the CPR necessitates such an artificial distinction.

Moreover, even if I were wrong in this conclusion, this again would not – at the strike out stage – be fatal to the claim. If the allegation of specific intent must formally be included within the body of N600 rather than in the accompanying affidavit, then any order dismissing the Strike Out Application (if that were otherwise the appropriate order had the Form N600 not been deficient) can be made on terms that the Form is amended. This is not a case where BHP could remotely argue that it has been prejudiced by the location of the relevant information as between Form N600 and the Affidavit.

The next point advanced by BHP is that the conduct complained of is not within any recognised category of criminal contempt. The MCs contend that the relevant category of contempt is the interference with the due administration of justice. This is, without doubt, an ‘overarching’ category of contempt. InAttorney General v Times Newspapers [1974] AC 273, Lord Diplock said:

Four years later, in Attorney General v Leveller magazine Ltd [1979] AC 440 Lord Diplock, again, said:

As recognised in the White Book at 81CC.8, a significant proportion of the case law on contempt of court is concerned with questions as to whether a particular conduct falls within or without what would be called ‘theinterference principle’ because it does or does not involve an interference with the due administration of justice in a particular case. The editors go on: ‘Obviously the forms of conduct that may arguably constitute ‘interference’ and which therefore make up that ‘variety of forms’ of contempt referred to by Lord Diplock must be many and various.’

BHP place reliance upon the observation of the editors that, ‘Nowadays, it seems that judicial sentiment is against the widening of contempt liability. Submissions that the ‘interference’ principle should be applied to circumstances not illustrated in previously decided cases (and therefore not found among the ‘variety of forms’), on the ground that the novel circumstances are but new examples of conduct covered by the principle, are likely to be met by the argument that they would constitute widening of the contempt liability that should not be countenanced’. Mr Scott KC argues that, in the context of criminal liability, mere reference to interference in the administration of justice is too vague a concept to provide necessary certainty. It is accepted by the MCs that there is no English authority that procuring or funding foreign proceedings with the intent of impacting adversely a party’s ability to pursue claims unhindered in this jurisdiction can amount to criminal contempt.

However, the comment in the White Book falls far short of suggesting that any claim for criminal contempt that does not fall within a specific type of conduct previously classed as such must fail as a matter of principle. Any such suggestion would be wrong in law. Lord Diplock’s reference to a ‘variety of forms’ was not, in my view, a reference to a fixed catalogue of misdemeanours: quite the reverse, it was a statement of the obvious fact that the ways in which the administration of justice may be interfered with in such a way as to constitute a criminal contempt are many and varied. Whilst a Court will inevitably be cautious in concluding that the administration of justice has been interfered with in a contemptuous way where the circumstances are unprecedented, the unprecedented nature of the conduct of itself plainly cannot constitute a legal defence to an application for contempt.

Therefore, the fact that the present set of facts is (relatively) novel does not of itself provide a basis for contending that there are no reasonable grounds advanced by the MCs. Moreover, to the extent that the MCs’ argument is (a) novel and (b) potentially a matter of public policy/importance, this would be a reason, even if questionable, not to dispose of the matter summarily by way of strike out application.

It is convenient to consider next the final point made by Mr Scott KC under the heading of whether the application discloses any reasonable grounds (before turning to his third argument). Whilst, in writing, Mr Scott KC contended that exercising a legal right to institute legal proceedings can never amount to a contempt, he did not put it quite as high orally. Nevertheless, he emphasised a party’s rights of access to court, guaranteed under Article 6 ECHR, and argued that the IBRAM Claim itself cannot interfere with the administration of justice: it would only be upon the making of determinations or orders by the STF that such interference could take place. All the STF would be declaring is the true position under Brazilian constitutional law, and granting final relief to reflect its determination. Seeking this outcome cannot of itself be contemptuous. A third limb to the argument effectively reiterated the lack of room for the contempt jurisdiction where anti-suit injunctive relief is available, which I consider separately below. Mr Scott KC contended that even if, contrary to the foregoing, the institution of proceedings can, in principle, be capable of being a criminal contempt, this would only be in a case where those proceedings imposed an improper pressure on a litigant as regards their conduct of the English proceedings and that no such improper pressure exists, even arguably.

The starting point is that the suggestion that exercising a legal right to institute legal proceedings cannot, of itself, constitute a criminal contempt is not supported by authority. To the contrary, it is clear that, if done for the purposes of interfering with existing proceedings, exercising or threatening to exercise lawful rights can amount to criminal contempt.

In the case of R v Kellet (1976) 1 QB 372, Mr Kellet became aware that his neighbours intended to give disparaging witness evidence about him in divorce proceedings. He then sent a friend, armed with a tape recorder in her shopping bag and pretending to be a prospective tenant, to question the neighbours about him. Notwithstanding the fact the tape recordings were, apparently, unintelligible, Mr Kellet wrote to the neighbours alleging that they had been slanderous and malicious, that he had a recording of it, and threatening to sue for damages. The letter concluded, ‘The amount of damages etc, I will discuss with my solicitor, but firstly you might like to withdraw your statements made….’ It was held that the defendant committed the offence of attempting to pervert the course of justice when, in threatening to bring a slander action against the neighbours, he intended to induce them not to give evidence against him in the divorce proceedings, notwithstanding the fact that the institution of slander proceedings would have been entirely lawful. Whilst undoubtedly very different on its facts, it undermines the contention that as a matter of principle, the lawful institution of legal proceedings can never amount to a contempt. Mr Scott KC sought to draw a distinction by emphasising that Kellet was a case involving the threat of legal proceedings, rather than the bringing of proceedings. Whilst true, this is not analytically relevant. If Mr Kellet had in fact lawfully started such proceedings, rather than merely threatening to do so, the outcome of the case would have been the same providing the necessary intention or purpose for doing so (interfering with the course of justice by placing pressure on prospective witnesses) was established.

Ms Horlick KC, for the MCs, also relies upon Dagi & Ors v BHP & Ors (Supreme Court of Victoria, 18 Sep 1995, unreported). The plaintiffs alleged that BHP (here, referring to the Broken Hill Proprietary Company Ltd, an ancestor of, but with a different company structure to, the Defendants in these proceedings), in contempt of the integrity of the Court’s process, sought to deny the plaintiff’s access to the Court. The plaintiffs were claiming that their lives and occupations had been grievously injured by devastating pollution from the Ok Tedi copper mine at Mt Publian in Papua New Guinea. The contempt was alleged to have taken the form of, first, procuring and agreeing to what was called ‘the Eighth Supplemental Agreement’, and second, in drafting, preparing and advising upon the Mining (Ok Tedi Eighth Supplemental Agreement) Bill. The Eight Supplemental Agreement was between the operators of the Ok Tedi Mine and the Papua New Guinea Government, which was to be ratified by legislation if the Bill passed. It would have made it an offence for Papua New Guinea landowners to pursue or maintain legal proceedings in respect of damage caused by the Ok Tedi Mine. Having considered the evidence, Cummins J found, ‘I am satisfied beyond reasonable doubt that [BHP] has sought to block the actions of these plaintiffs presently before this Court.’ The plaintiffs categorised the contempt as hindering or seeking to hinder access to law, in reliance upon the principle set out by Lord Diplock in Times Newspapers and quoted at [‎37] above. In his judgment, having quoted the same passage, the judge continued:

BHP argued in Dagi that the proceedings for contempt were fundamentally misconceived because they sought to interfere with its lawful right to have access to Parliament and the sovereign right of Parliament to have the benefit of access to it by citizens. There is a parallel with, in this case, the undoubtedly lawful right to have a constitutional question of law tested in the STF.

BHP’s argument failed. The judge said:

I consider that it is reasonably arguable (in the context of a strike out application) that, as the MCs submit, the same analysis applies. Insofar as it is established that the IBRAM Claim, with accompanying Interim Relief sought, was intentionally procured and funded by BHP for the purpose of blocking the MCs’ access to this Court in the Main Proceedings, that is (subject to Mr Scott KC’s further argument about the existence of the anti-suit jurisdiction) in principle capable of constituting a criminal contempt of court, irrespective of the lawfulness of the arrangement by which the IBRAM Claim was procured and has been funded, and the lawfulness of the IBRAM Claim itself. There are reasonable grounds to argue that BHP’s strategy in procuring and funding the (unstoppable) IBRAM Claim, together with interim relief seeking to block access between the MCs and their lawyers, was specifically designed with the purpose, as alleged, of interfering with the administration of justice in these Courts.

There are also reasonable grounds to argue that such a finding would not offend against Article 6 ECHR. The right claimed by BHP needs to be balanced against the right of the MCs to have access to this Court which, as has been determined, has jurisdiction to hear the case. In short, it would be surprising if an act which is itself designed to interfere with the administration of justice is protected by Article 6. Whilst it is right that, in determining the IBRAM Claim, the STF would be doing no more than declaring the constitutional position in Brazil, this is, at least arguably, no different in principle to the other lawful acts considered in the cases above which, though lawful in themselves, may constitute contempt if the purpose of those acts is to interfere with the administration of justice. Moreover, an important part of the focus of the Contempt Application is the procurement and funding of the attempts to obtain the Interim Relief, which (it can reasonably be argued) went far beyond the mere declaration of constitutional rights.

I turn then to Mr Scott KC’s central argument that the conduct complained of is properly the concern of the anti-suit injunction jurisdiction. It is argued that the English Court has for many centuries recognised that it has broad powers to grant anti-suit injunctions where the ends of justice require. Principles have been developed by which to assess the conduct complained of and the appropriateness of granting relief in all the circumstances. Against this background, Mr Scott KC argues that, had BHP contested the ASI Application, the Court would have been able to draw on these well-established principles to ascertain whether an injunction was necessary to protect its jurisdiction or to protect the MCs from unconscionable conduct. The Court would have needed to bear in mind the nature of the jurisdiction invoked in Brazil and its connections to the dispute, as well as the comity implications of the English Court involving itself in constitutional law proceedings before the STF, pertaining to Brazilian Municipalities. Ultimately, had the Court been satisfied that the conduct complained of justified an anti-suit injunction, the Court would then have fashioned the appropriate injunction to meet the ends of justice. The Court’s injunction would then have been enforceable in the usual way, including through civil contempt proceedings if that proved to be necessary.

It is therefore said that there is simply no need or room for the criminal contempt jurisdiction, and that to extend criminal contempt to a party’s conduct in foreign proceedings would ‘open the floodgates’, because it may often be said that the foreign proceedings were intended to obstruct or interfere with the English litigation. Such a rash of applications would not be in the public interest or consistent with the CPR’s overriding objective. Mr Scott KC did not demur from the proposition that the existence of the anti-suit jurisdiction completely ousted, as a matter of principle, the power of the Court with respect to criminal contempt proceedings. Whilst he accepted, orally, the general proposition that bringing lawful proceedings in the Courts of England and Wales could, as a matter of principle, be criminally contemptuous (as considered above), he contended that the same action in foreign courts, with the same motive, could not be as a matter of principle because the powers of the Court within the anti-suit jurisdiction, with collateral civil contempt powers, make such power unnecessary.

Notwithstanding Mr Scott KC’s attractive advocacy, it simply cannot be right that the Court’s inherent power to police acts of interference in the proper administration of justice through criminal contempt proceedings has been ousted by reason of the existence of the anti-suit injunctive powers and associated civil contempt jurisdiction. The cases considered above make it clear that lawful activities (or the threat of lawful activities) can themselves be, in certain circumstances, criminally contemptuous. There is no reason why, as a matter of principle or policy, the fact that that lawful activity may be taking place in a foreign jurisdiction, rather than this jurisdiction, means that it is incapable of constituting a criminal contempt. The fact that the Court may have more than one means of dealing with a particular course of conduct cannot and – as a matter of policy – should not remove from the ambit of criminal contempt that which would otherwise fall within it.

Moreover, as the facts of this case at least arguably demonstrate, there may be cases where the anti-suit jurisdiction may be inadequate properly to deal with an act of interference. In the present case, the setting in train of a fully funded constitutional challenge which cannot itself then be stopped by withdrawing the foreign proceedings, and which BHP have bound itself to fund, are matters in respect of which an anti-suit injunction is, at least potentially, toothless. The fact that there are circumstances in which an anti-suit injunction may be ineffective demonstrates the fallacy that the mere existence of the anti-suit jurisdiction is, in and of itself, sufficient to oust the ability of a Court to consider whether a criminal contempt has been committed by commencing foreign proceedings with the specific purpose of interfering with the due administration of justice in this jurisdiction.

Moreover, I would add that even if I am wrong about this, the extent to which as a matter of policy the existence of anti-suit injunctive powers should preclude a criminal contempt jurisdiction is not the sort of proposition that should be determined on a strike out application.

Finally, a determination that the bringing of foreign proceedings can, as a matter of principle in certain (limited) circumstances amount to a criminal contempt is unlikely to open any floodgates. Most cases involving proceedings brought in different jurisdictions, where anti-suit injunctions may be relevant, do not involve (for example) an attempt actively to block a party’s abilities to instruct lawyers, as alleged here, and the circumstances are usually such that, when coupled with the civil contempt jurisdiction, the interference can adequately be policed by an anti-suit jurisdiction.

In these circumstances, BHP’s argument that the Contempt Application contains no reasonable grounds fails.