English court refuses to block law firm from deposing potential witness in Arkansas

The English High Court has refused an application by BHP Group (UK) Limited and BHP Group Limited, together BHP, for an anti-suit injunction to prevent English law firm Pogust Goodhead (PG) from using US discovery procedures to gather pre-action testimony from a witness for the purposes of potential English litigation. 

PG obtained subpoenas against André de Freitas, a former executive of the Renova Foundation in Brazil, from an Arkansas court under section 1782 of title 28 of the United States Code, a federal provision that enables evidence to be taken in the US to assist proceedings in other jurisdictions. After unsuccessfully opposing the grant of the subpoenas in the Arkansas court, BHP attempted to obtain an anti-suit injunction from the English court to prevent PG from enforcing the subpoenas. The English court declined to grant the anti-suit injunction. 

The decision provides helpful guidance on the circumstances in which the English courts will (or will not) grant an anti-suit injunction (ASI) to restrain proceedings in the United States under section 1782. 

Fundão dam background

The dispute arose from litigation over the catastrophic collapse of the Fundão tailings dam in Brazil on 5 November 2015. At the time, PG represented over 600,000 claimants in a claim against BHP over the disaster. BHP was found to be liable to the claimants for the collapse by the English High Court in November 2025; quantum will be determined at a separate trial. 

Since November 2018, PG had threatened claims against BHP in connection with settlements made with claimants in Brazil. The firm alleges that BHP wrongfully instrumentalised various settlement schemes, engaging in conduct that led to direct settlements with claimants without provision for the firm's contingency fees, and in some cases requiring claimants to disinstruct the firm. 

Mr de Freitas, who lives or lived in Arkansas, served as director and CEO of the Renova Foundation between January 2019 and July 2023, an entity established to administer compensation schemes for victims of the collapse. Section 1782 of the US Code enables evidence to be taken in the US to assist proceedings in other jurisdictions. PG 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 Mr de Freitas, stating that his evidence would assist PG in filing and proving its claim. PG's application was successful, and two subpoenas were served on Mr de Freitas on 24 February 2025. The subpoenas sought communications concerning BHP's oversight of Renova, the dam collapse litigation, PG and its clients, as well as documents concerning BHP's involvement with settlement negotiations.

In June 2025, BHP issued a part 8 claim in the English High Court for an anti-suit injunction against PG, requesting that the court restrain the firm from taking any further steps, including enforcement, in respect of the section 1782 application, and direct it to withdraw the section 1782 application.

The court's decision

Anti-suit injunctions are broadly granted by the English Court in two situations: first, where the respondent's pursuit of foreign proceedings is vexatious or oppressive or interferes with the due process of the court; and second, where foreign proceedings have been brought in breach of an exclusive jurisdiction clause. It is the first category of anti-suit injunction that the court considered in this case. 

BHP argued that PG's conduct was vexatious and oppressive, that the evidence sought could not be described as critical, and that the application was a speculative fishing expedition. In particular, BHP argued that Mr de Freitas had stated he would give evidence either at the Arkansas deposition or at trial in England, but not both, and therefore deposing him in Arkansas would prejudice BHP's litigation interest by rendering Mr de Freitas unavailable to be called as a witness in the trial. 

PG argued that Mr de Freitas was likely to have useful evidence that could influence how PG would plead and prove its claim, that it was not certain that Mr de Freitas would refuse to attend trial in England having been deposed in Arkansas, and that in any case there had been a substantial delay of around four months in seeking an anti-suit injunction. 

The court found in favour of PG and declined to grant the anti-suit injunction. It held that the Section 1782 application in the US and the resulting order were neither vexatious and oppressive nor an interference with the English court process. 

The court emphasised that whether conduct is vexatious and oppressive is "a highly fact-sensitive question". The judge considered previous authorities on anti-suit injunction applications in the context of section 1782, and found the case to be more "nuanced and uncertain" than previous cases in which anti-suit injunction had been successfully obtained. 

He distinguished it in particular from Omega Group Holdings Ltd v Kozeny. In Omega, there were existing fully pleaded proceedings with witnesses already lined up to testify; the party that had obtained the section 1782 order would have the opportunity to cross-examine those witnesses at trial in England, but additionally sought to depose them beforehand in the US. In the present case, PG sought to depose Mr de Freitas at a pre-trial stage to obtain evidence to assist in pleading and proving its case.

The judge found any risk of prejudice to BHP to be "either small or speculative", noting it would only arise if Mr de Freitas gave helpful evidence and the claim proceeded.

The judge confirmed that "it is not the law that it is [vexatious and oppressive] to take advantage of a facility abroad to depose a witness, pre-action, even if this is not a procedure available here. Parties are entitled to make use of litigation advantages such as this, if available."

The judge added that, even had PG's conduct been vexatious and oppressive, he would still have declined to exercise his discretion to make the order. This was principally because he found "unjustified delay" on BHP's part in seeking the injunction. In particular, he found that the delay had resulted from BHP approaching the matter incorrectly: it had run all its arguments against PG's use of the section 1782 procedure before the Arkansas court, even arguing before the Arkansas court that the English court would grant an anti-suit injunction if asked to do so. Having failed in Arkansas, BHP then applied to the English court for an ASI. The judge considered that this raised a question of comity that weighed against BHP.

Osborne Clarke comment

This is a helpful judgment for litigants seeking to rely on processes of foreign courts, especially for obtaining evidence or information. For an anti-suit injunction claim to succeed, the English court must be satisfied that the use of the foreign court is unconscionable because it is "vexatious and oppressive" or, if different, because it interferes with the English court process. This is a highly fact-sensitive question. Even then, the grant of an anti-suit injunction remains a matter of judicial discretion.

The court confirmed that, as a matter of principle, it is not automatically vexatious or oppressive to take advantage of a foreign law provision to depose a witness pre-action, even where no equivalent procedure exists in England and Wales. Parties are permitted to exploit lawful litigation advantages where available. Of the previous English cases in which an anti-suit injunction had been sought in the context of section 1782, the court noted that only three had resulted in one being granted; all others had failed.

Parties wishing to challenge foreign procedures would do well to act promptly. They should not expect to be able to seek an anti-suit injunction in England only after bringing unsuccessful challenges in the foreign proceedings.

The judgment also establishes that comity concerns can arise even where foreign proceedings have not produced a final judgment. Engaging a foreign court in interlocutory proceedings and then seeking to override those proceedings through an English anti-suit injunction will raise comity concerns, regardless of the outcome.