English High Court Refuses Anti-Suit Injunction to Block Subpoenas in BHP v. Pogust Goodhead

The English High Court has dismissed a claim for an anti-suit injunction (ASI) by BHP Group (UK) Ltd and BHP Group Limited (collectively "BHP") against PGMBM Law Ltd, trading as Pogust Goodhead. Orrick acted for Pogust Goodhead in responding to BHP’s ASI application, which was dismissed in December 2025.

The case concerned BHP's attempt to prevent Pogust Goodhead from using U.S. discovery procedures to obtain pre-action testimony from a key witness about alleged interference with Pogust Goodhead's client relationships in Brazil.

The decision sheds light on the circumstances in which the English courts will grant an ASI to restrain proceedings under Section 1782 of Title 28 of the United States Code”, a federal provision which enables evidence to be taken in the U.S. to assist proceedings in other jurisdictions.

Key Takeaways

1. For the ASI claim to succeed, the English court must be satisfied that the pursuit of the Section 1782 application is unconscionable because it is “vexatious and oppressive” or interferes with the English court process. Even then, it isa matter for the discretion of the court whether to grant an ASI.
   
   
2. The question of whether conduct is vexatious and oppressive is highly fact sensitive. The Court noted that there were only three previous cases in which an ASI had been granted by the English courts in the context of Section 1782. In other cases, the claim failed.
   
   
3. The Court confirmed that, as a matter of principle, it is not automatically vexatious or oppressive to take advantage of a provision of foreign law to depose a witness pre-action, even if no such procedure would be available in England and Wales. Parties are entitled to make use of litigation advantages where they can lawfully do so.
   
   
4. The decision provides useful guidance for both applicants and respondents on the kind of discretionary factors which may weigh against the grant of an ASI. In this case, the fact that BHP delayed in applying to the English court (and in the interim engaged substantively with the Section 1782 proceedings in the U.S.) was ultimately fatal to its claim.

In More Detail: Facts of the Case

Pogust Goodhead is a firm of solicitors representing approximately 613,000 claimants in English proceedings against BHP, a mining company, relating to the 2015 collapse of the Fundão dam in Brazil. Pogust Goodhead has indicated that it may bring its own claim against BHP, since it alleges that BHP wrongfully interfered with its retainer rights by directly pursuing settlements with its clients in Brazil.

In connection with this potential claim, Pogust Goodhead applied ex parte to the U.S. District Court for the Eastern District of Arkansas under Section 1782 to compel testimony and document production from a Mr. André de Freitas. Mr. de Freitas is the former CEO of the Renova Foundation, a legal entity set up to administer compensation schemes in Brazil following the dam collapse.

The Arkansas Court granted the Section 1782 application and Mr. de Freitas was served with subpoenas in February 2025. On 14 March 2025, BHP filed a motion to intervene in the proceedings relating to the Section 1782 application. Between March and June 2025, BHP (and Mr. de Freitas) engaged with the Arkansas Court by filing and pursuing motions to quash the subpoenas. The subpoenas are on hold pending judgment on the motions.

On 13 June 2025, BHP issued a Part 8 claim in the English High Court for an ASI against Pogust Goodhead. BHP asked the court to:

• Restrain Pogust Goodhead from taking any further steps (including by way of enforcement) in respect of the Section 1782 application, and
• Withdraw the Section 1782 application

Pogust Goodhead resisted the claim.

The Court’s Decision

The Court found in favour of Pogust Goodhead. In the Court’s judgment, Pogust Goodhead’s making of the Section 1782 application and intention to rely upon the resulting order (if sustained) was not unconscionable, whether by being vexatious and oppressive or as an interference with the English court process. Moreover, there were significant discretionary factors weighing against the grant of an ASI.

The “Vexatious and Oppressive” Test

The core question for the Court was whether BHP had shown that the English court process would be interfered with, or prejudiced, in some material way if there was no ASI. Context was highly important.

Here, the context was that Pogust Goodhead sought to depose Mr. de Freitas at an early (but not illegitimate) stage to obtain evidence from him which might assist it in pleading and later proving its case against BHP. The Court accepted that the depositions would serve a “distinct and legitimate purpose”. That purpose was to better understand Renova's role in relation to the various settlements and their form, and not to replicate evidence that Mr. de Freitas might give at a future trial. The case could be distinguished from one in which an ASI was justified by a significant risk of “double cross-examination”.

The Court considered that, on any view, Mr. de Freitas might have useful evidence to give. Since making the Section 1782 application, Pogust Goodhead had been able to articulate its prospective claims against BHP in a letter before action. However, this did not mean that its position could not be improved prior to issuing any claim.

In the Court’s view, the question of prejudice to BHP’s litigation interests only arose in a scenario where Mr. de Freitas provided evidence in his depositions that was favourable to BHP’s defence, Pogust Goodhead nevertheless pursued its claims, and Mr. de Freitas then refused to give evidence for BHP at trial. The Court judged this risk to be “small and speculative”, especially because any trial would not take place for years. BHP and Mr. Freitas had offered undertakings to reassure Pogust Goodhead that, if not deposed, Mr Freitas would give evidence at trial. However, the Court concluded that these undertakings were of “limited value”.

The Court also stressed that, as a matter of principle, it is not inherently vexatious and oppressive to take advantage of a facility under foreign law such as Section 1782 to depose a witness pre-action. In general, the English courts do not control the manner in which a party obtains the evidence needed to support it case, provided that the use of that evidence in the jurisdiction is lawful.

The Court’s Discretion

The Court said that, even if the conduct of Pogust Goodhead had been vexatious and oppressive, it would not have exercised its discretion in favour of BHP. There were two significant discretionary factors against the grant of an ASI.

First, BHP had delayed for almost four months before applying to the English court for an ASI.  BHP had shown no good reason for that delay. It could have sought an ASI on an urgent basis as early as March 2025.

Second, before applying to the English court, BHP had intervened in and fully engaged with the U.S. court process by making its own motion to quash the subpoenas. Before the Arkansas Court, BHP relied on the existence of the English ASI process as a reason why it would be wrong to permit Pogust Goodhead to use the Section 1782 procedure. Having “exhausted” its submissions, it issued the ASI claim in England and advanced similar arguments there. The Court characterised this as a classic attempt to have “two bites at the cherry” and concluded that it raised questions of comity which were adverse to BHP.