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

In Sovereign Dimensional Survey Ltd v Cooper [2009] SC 382, Lord Reed (for an Extra Division of the Outer House) identified these factors as follows at [32]:

“…They will include factors bearing on the gravity of the alleged contempt, including whether it was persisted in to the point at which it was likely to interfere with the course of justice. They will include factors bearing on the extent to which the proceedings would be likely to promote the authority of the court and the administration of justice: whether, for example, the continuation of the proceedings would be likely to have a salutary effect by drawing the attention of the legal profession to a particular problem, or whether the discontinuation of the proceedings would run the risk of encouraging parties to treat the court's orders as being of little importance. They may include the relationship between the contempt proceedings and other proceedings: whether, for example, the contempt proceedings will disrupt the progress of the substantive proceedings or will involve a duplication of evidence; or whether, as was indicated in the Anton Piller case, the party in contempt may be effectively penalised through the contempt being brought out in the substantive proceedings, with the effect of damaging his credibility. The court will also wish to have regard to whether the proceedings would be likely to justify the public resources that would have to be devoted to them: particularly in a complex case, contempt proceedings may involve a substantial call on court time and resources. These are not considerations which the court can disregard: the proper administration of justice includes ensuring that cases are dealt with expeditiously and without undue demands on the resources of the court.”

Mr Scott KC argues, first, that the application serves no practical utility. He points out that there is no suggestion that BHP is not complying with those undertakings made in the Consent Order, and that it has agreed to pay the costs of the ASI Application (said to be very significant). The procurement and funding of the IBRAM Claim has been brought to the Court’s attention, at least to the extent admitted in the 13 July 2024 letter. A finding of contempt would not make any difference to the course of IBRAM’s proceedings in Brazil or on the Main Proceedings in England. Whilst Mr Scott KC is undoubtedly correct that there is a lack of practical impact on the course of either the foreign or domestic proceedings, this will often be the case in respect of applications for contempt. The practical utility of contempt proceedings is measured principally by reference to the impact on the wider administration of justice. For example, proceedings relating to a dishonest attempt to mislead the Court in witness evidence brought, as is often the way, after the substantive proceedings have been discontinued have no practical utility in the context of the (discontinued) proceedings. However, this does not detract from the potential public interest in contempt proceedings being brought, so as to bring home to litigants that such behaviour, depending on intent and gravity, may have more significant personal consequences than the mere loss of the case in question.

Second, Mr Scott KC argues that the fact that the alleged criminal contempt does not entail any direct interference with the administration of justice here, given that the alleged content is the bringing of foreign proceedings. This adds nothing over and above BHP’s argument that foreign proceedings can never constitute an act of criminal contempt. If they can, and did in this case, as I considered there are reasonable grounds to argue, the fact that the interference with the administration of justice has been brought about by the instigation of foreign proceedings does not of itself bear on the question of public interest.

The third argument is that criminal contempt is unnecessary in light of the ASI jurisdiction and the fact that the Main Proceedings have now concluded without any actual interference (e.g. the MCs actually being denied access to their lawyers). However, a contempt is a contempt, and this is so ‘whether the attempt is successful or not’ (Re B [1965] Ch 1112’ (see R v Griffin (1989) 88 Cr App R 63 at 68). The fact that the Interim Relief was not granted, as requested, was a matter of happenstance, not some sort of remediation of the contempt (if that is what it was).

Fourth, it is said that the circumstances of this case are unique, or unusual at least, so that pursuing contempt proceedings so that they may have a salutary effect for the legal profession or more broadly to solve a particular problem is unnecessary. This rather cuts against Mr Scott KC’s argument that to allow the application to proceed would open the floodgates in all anti-suit injunction cases. Either way, it does not seem to me that the allegation that the interference with administration of justice has been intentionally attempted in somewhat unusual circumstances is of itself a good reason that there is no public interest in sanctioning such conduct where otherwise an application, by reason of its seriousness, would be warranted.

Finally, it is said that this case has already consumed vast party and public resources. Mr Scott KC asks the Court to consider with care whether it would be proportionate and in line with the overriding objective to devote yet further resources to adjudicate the Contempt Application. In my judgment, if the contempt alleged is proven, it would be a sufficiently serious matter, and a matter of sufficient public importance, to warrant the additional, relatively limited (particularly in the context of that which have so far been committed) judicial resources which a further hearing would entail.