The case of the day is BHP Group (UK) Ltd. v. PGMBM Law Ltd., [2025] EWHC 3153 (TCC). PGMBM Law is the formal name of Pogust Goodhead, the class action law firm.

Pogust Goodhead is representing the claimants in a multi-billion pound class action in England that arises out of the 2015 collapse of the Fundão Dam in Brazil. BHP, the defendant, was one of partners in the joint venture that operated the dam. After the collapse, a Brazilian nonprofit called Renova was set up, with the involvement of BHP, the Brazilian government, and others, to compensate the victims through a variety of settlement mechanisms . (Renova was later dissolved, under an agreement called the “Repactuation”). In the English court,¹Don’t @ me, I know they are the “courts of England and Wales.” BHP took the position that the Brazilian compensation scheme was providing the victims with full compensation, apparently in support of its argument that the English case against it shouldn’t proceed. BHP offered lengthy witness statements from André de Freitas, a Brazilian national who apparently now resides in Arkansas. De Freitas had been a director of Renova. Although he left in 2023, BHP claimed that the Repactuation, which was agreed in 2024, was under discussion for some time before de Freitas’s departure. The English court of appeals ruled against BHP on the issue of the adequacy of the compensation scheme.

Pogust Goodhead, which had a litigation funder in the case, was unhappy BHP had settled with some of its clients in Brazil, because it was working under a contingent fee agreement. It stated its intention to bring a claim in England “seeking an equitable lien and charge against BHP for its role in negotiating settlement agreements directly with Pogust Goodhead clients without [the firm’s] knowledge or involvement.” I am not an English lawyer and can’t comment on the validity of such a claim, but it strikes me as very odd. If the claimants have received settlement funds, wouldn’t the lien attach to the funds in the claimants’ hands rather than in BHP’s hands? Isn’t the firm’s beef with its clients? In other words, assuming that BHP’s English lawyers weren’t communicating directly with the claimants rather than with Pogust Goodhead or the claimants’ Brazilian lawyers (if they had lawyers in Brazil) in a way that would violate the English equivalent of our Rule 4.2,²“In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.” I assume but do not know that a similar rule must apply in England. how has BHP wronged Pogust Goodhead?

Anyway, Pogust Goodhead brought an application in Arkansas under Section 1782 seeking leave to serve subpoenas for documents and testimony on de Freitas. The statutory prerequisites were met (there doesn’t seem to be much dispute that Pogust Goodhead was actually going to bring its lawsuit), and the judge found that all the Intel factors favored discovery. So she granted the application ex parte.

De Freitas, through his lawyers, offered to go to England to testify, provided he only had to testify once, and provided Pogust Goodhead stayed the 1782 case. But the firm rejected the offer on the grounds that it needed the testimony in order to plead its claim and that de Freitas’s promise was not enforceable. De Freitas then sought to quash the subpoenas, arguing among other things that they were overly broad.

During the hearing on the motion to quash, BHP’s lawyers told the American judge that the company planned to seek an antisuit injunction in England. But the judge decided against waiting on the English court’s decision on the grounds that the motion before her had been fully briefed and was ready to be decided.

After a characteristically English letter-writing campaign, where BHP’s lawyers “invited” Pogust Goodhead to withdraw the 1782 application and the firm “invited” BHP to withdraw its criticism of the application, and an unfortunately characteristically American letter-writing campaign where BHP’s lawyer invoked Rule 11, our rule that allows sanctions of lawyers that make unwarranted claims, nothing changed. Four months after it learned of the subpoenas, BHP sought an injunction in the High Court. The claim was that seeking evidence in the United States via Section 1782 was unconscionable because it was vexatious and oppressive.

The judge reviewed the leading English cases, including South Carolina Ins. Co. v. Assurantie Maatschappij “De Zeven Provincien” NV, the House of Lords case reversing a decision to grant an antisuit injunction and making the point that there’s nothing wrong with seeking evidence abroad by means legal in the country where you’re taking the evidence:

all they have done is what any party preparing his case and the High Court here is entitled to do, namely to try and obtain in a foreign country, by means lawful in that country, documentary evidence which they believe that they need in order to prepare and present their case.

The court also reviewed the few cases that had granted antisuit applications, and for comparison, an Australian case that took a view contrary to the basic rule of South Carolina. The key facts seemed to be, first, that Pogust Goodhead hadn’t yet pleaded its claim, and second, that it wasn’t yet clear that the firm would call de Freitas as a witness at trial. Indeed, maybe BHP would want to call him. All of that depended on how helpful or unhelpful to Pogust Goodhead’s case the testimony turned out to be. In light of these considerations, the court distinguished prior cases that had granted antisuit injunctions.

This way of framing things is surprising to me. It’s odd to conclude that the case for proceeding under Section 1782 is stronger when the English proceeding isn’t yet pending than it would be if the claimant had already pleaded the claim, since (at least as I understand it) the English courts, really, really don’t like “fishing.” Even the American courts, which are friendlier to broad discovery, find it easier to grant a Section 1782 application when the action is pending. Anyway, given that de Freitas was in the United States and his appearance at trial could not be compelled by the English courts, it seems to me that Pogust Goodhead has a good reason to want to take his deposition even if de Freitas says he is willing to show up at trial, because everyone seemed to agree that his promise would not be enforceable.

One of the oddities that I’ve observed in doing this work for a long time is that common law jurisdictions can sometimes be more difficult to work in than civil law jurisdictions. After all, it’s not like the “bill of discovery,” which is the historical root of American discovery practice, was invented on this side of the Atlantic. It’s an ancient equitable remedy meant to allow cases at law to proceed when the claimant doesn’t have access to the evidence. I have a theory for why common law jurisdictions can be tough. It’s because of the common law method. You have a lot of smart lawyers and judges arguing fine distinctions and generating precedents, and so you end up with a lot of complicated rules about when (to take this case as an example) antisuit injunctions should or should not issue, and you get away from the simplicity of the basic idea of the law, which is that you should be able to gather evidence anywhere in the world as long as you are acting legally under that law of the place where you’re gathering the evidence.

• 1
  Don’t @ me, I know they are the “courts of England and Wales.”
• 2
  “In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.” I assume but do not know that a similar rule must apply in England.