English Court Refuses To Restrain §1782 Proceedings in the U.S

The English Court has issued a significant judgment concerning when it will and will not injunct parties from pursuing discovery or deposition under section 1782 of Title 28 of the United States Code.

Delay in seeking an injunction in the English Court can be fatal to an otherwise good application. U.S. and English strategy must be coordinated from the outset.

Background

The judgment was given in proceedings spinning out of the well-known Fundão Dam litigation. In that case, over 600,000 claimants, represented by Pogust Goodhead (“PG”), have sued BHP Group (UK) and BHP limited (“BHP”) in the English High Court for £36bn in losses arising from the collapse of the Brazilian Dam. The Court of Appeal rejected jurisdictional and abuse of process challenges and a liability trial in November 2025 went in the Claimant’s favour. The case is expected to proceed to a quantum trial in late 2026 / early 2027.

• 1782 Proceedings in Arkansas

Separately, PG intimated a £1.3bn claim in England against BHP for wrongfully procuring settlements directly with PG’s clients, to BHP’s benefit and PG’s detriment.

In January 2025, PG obtained, ex parte, orders from the Arkansas district Court under §1782 that a Mr de Freitas be deposed – on the basis that he had evidence important to its ability to plead and prove a claim against BHP.

BHP became aware of the subpoeanas in February 2025 and applied to quash them. This led to a hearing in the Arkansas Court in June 2025. In seeking to quash, BHP informed the Arkansas court that they intended to seek injunctive relief in England aimed at restraining PG from pursuing the §1782 proceedings and set out the English law position (as they saw it) on such relief.

Anti-Suit Injunction Application in England

Shortly after the Arkansas hearing, but before the Arkansas Court handed down its decision, BHP applied in England for an anti-suit injunction (“ASI”) to restrain PG from pursuing the §1782.

ASIs can be a potent tool, usually sought to control the jurisdiction of a substantive dispute but have also been granted to restrain a party from pursuing §1782 proceedings.

To obtain an ASI against §1782 proceedings, the applicant needs to satisfy the English Court that (1) those proceedings are “unconscionable” because they are vexatious, oppressive or otherwise interfere with the due process of the Court and, if they are, (2) it should use its discretion to grant an ASI.

Here, BHP argued that the §1782 were oppressive and vexatious because (amongst other things):

• the evidence sought in the §1782 was not critical to PG’s evaluation of its intimated claim, it was in reality a fishing expedition;
• Mr de Freitas had said via his lawyers he was prepared to give evidence either at a deposition in Arkansas or at any trial of PG’s claims against BHP, but not both;
• it would be unfair to BHP if Mr de Freitas gave deposition evidence in Arkansas and then refused to be a trial witness in England;
• Mr de Freitas would undertake to attend any English trial (absent an Arkansas deposition) and BHP would undertake to us reasonable endeavours to procure his attendance.

PG argued (amongst other things):

• the evidence sought via §1782 was needed for PG plead and prove its claim, and any controversy over the scope of the §1782 was a matter for the Arkansas Court;
• the proposed undertakings to attend a trial in England were effectively unenforceable;
• there was no certainty that, if deposed, Mr de Freitas would in fact refuse to attend a trial in England; and
• there had been substantial delay in bringing the ASI application.

The Decision of the English Court

The English judge refused to grant an ASI – finding that the §1782 was not vexatious or oppressive and, in any event, it would be refused on discretionary grounds due to delay.

The Judge, Waksman J, found:

• the depositions sought served a distinct (and legitimate) purpose to any evidence which Mr de Freitas may give at any ensuing English trial, there was no real risk of “double cross- examination”;
• there was risk of prejudice to BHP in any English trial where they wished to call Mr de Freitas as a witness but where he refused because he had already given deposition evidence in Arkansas but that risk was “small or speculative”;
• the undertakings offered did not help BHP: PG sought evidence to assist preparing their claim, so an offer to give evidence at any English trial of that claim could not replace deposition’s purpose; and they were effectively unenforceable;
• even if the ASI application met the primary test (that the §1782 was vexatious or oppressive), it would be refused as a matter of discretion – there had been unjustified delay in making the application during which the Arkansas court had to fully engage with the §1782 application by considering BHP and Mr de Freitas’ motions to quash.

The Judge also found it “odd” that BHP in the Arkansas Court invoked English law on ASI but made no application for one in the English Court (until later).

Implications

English Courts will not interfere with proceedings in other jurisdictions lightly. As Waksman J put it in this case: “It is not [English] law that it is [vexatious or oppressive to its own proceedings for parties] 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 [§1782s], if available.”

What the English Court will regard as sufficiently uncontainable to justify its intervention will necessarily be fact-specific but what is very clear from this case is that delay, of just under four months here, can be fatal to an otherwise strong ASI application. Further, whilst it was not decisive, the Judge in this case was concerned about parties litigating ASI/English law issues in the U.S. Court without (promptly) applying to the English Court for injunctive relief.

Judgment: BHP Group (UK) Ltd, BHP Group Ltd v PGMBM Law Ltd [2025] EWHC 3153 (TCC)

Edwin Coe’s disputes team has worked on many cross border evidential exercises, in respect of domestic dispute and in disputes conducted in other jurisdictions. Please contact partner Alex Shirtcliff for further information about how we can help.