Can English courts block U.S. discovery?

Cross-border litigation often resembles a high-stakes chess match, where moves made on one side of the Atlantic can drastically alter the game on the other. For legal practitioners involved in international disputes, understanding how different jurisdictions interact is not just academic—it is a strategic necessity. A recent judgment from the UK’s Technology and Construction Court (TCC) offers crucial insight into this dynamic, particularly regarding the interplay between English proceedings and discovery tools in the United States.

The case in question emerges from the shadow of the Mariana Dam disaster, a tragedy that has spawned extensive litigation. It pits mining giant BHP Group (UK) Ltd / BHP Group Limited (BHP) against Pogust Goodhead (PG), the firm representing numerous claimants. At the heart of this specific dispute is section 1782 of Title 28 of the U.S. Code. This powerful tool allows litigants to obtain evidence in the U.S. for use in foreign proceedings.

The central question was this: Can an English court issue an anti-suit injunction (ASI) to stop a party from using section 1782 to gather evidence in the U.S. for a UK claim? The TCC’s refusal to grant such an injunction provides significant precedent for claimants seeking early evidence and a stark warning for defendants seeking to block it.

The Context: Mariana Dam and the fight for evidence

The background to this legal battle is complex, but the core issue revolves around access to information. Pogust Goodhead, preparing for a potential £1.3 billion claim against BHP in the UK, sought evidence from Mr André de Freitas. To get this evidence, PG turned to the U.S. courts, initiating proceedings under section 1782 of Title 28 of the U.S. Code.

Section 1782 is a statute that allows interested parties to request a U.S. federal district court to order a person residing in that district to give testimony or produce documents for use in a foreign or international tribunal. PG argued that de Freitas likely held relevant evidence that would help them adequately plead their claim in the UK.

BHP, however, strongly objected. They first intervened in the U.S. proceedings, attempting to quash the subpoenas. While that motion was pending, they opened a second front in London by seeking an anti-suit injunction from the TCC.

What is an Anti-Suit Injunction (ASI)?

In simple terms, an ASI is a court order that restrains a party from commencing or continuing legal proceedings in a foreign jurisdiction. In this case, BHP sought an English court order requiring PG to stop enforcing its U.S. subpoenas and to halt the depositions of de Freitas.

BHP’s argument rested on the claim that the U.S. proceedings were “vexatious and oppressive.” Their reasoning included:

• Double Cross-Examination: BHP argued that de Freitas might face questioning twice—once in Arkansas for the U.S. deposition, and again in London if the UK claim proceeded.
• Redundancy: They claimed de Freitas had already agreed to give evidence in London, making the U.S. deposition unnecessary.

PG countered that using section 1782 was a legitimate strategic step. They argued that obtaining evidence at the pre-action stage (before full litigation begins) was crucial to accurately formulating their claim. Furthermore, they pointed out that BHP had delayed seeking the ASI, which should weigh against granting it.

The Decision: Why the TCC refused the injunction

The matter came before Mr Justice Waksman in the TCC, who ultimately dismissed BHP’s application. The court’s reasoning dismantles several common arguments used by defendants seeking to block the gathering of foreign evidence.

1. Legitimacy of pre-action evidence gathering

The court held that PG’s pursuit of the section 1782 subpoenas was neither vexatious nor oppressive. Crucially, the judge accepted that PG had a legitimate interest in using the U.S. procedure. Even though the main claim was intended for the UK, gathering evidence early to help “formulate” it was seen as a valid use of the available legal tools.

2. The “Double Cross-Examination” myth

The court was unpersuaded by the fear of abusive duplication. Justice Waksman rejected the argument that there was a real risk of unfair “double cross-examination.” The reasoning was practical: any potential trial in the UK was likely to be far in the future. Therefore, the risk of de Freitas being hauled onto the stand in London shortly after his U.S. deposition was speculative at best. The court did not see a substantial risk of oppression.

3. Discretion and the issue of delay

Perhaps most importantly for tactical planning, the judge noted that even if the conduct had been arguably oppressive, he would still have declined to grant the injunction. Two key factors influenced this decision:

• Delay: BHP waited too long to file its injunction claim.
• Comity: By first engaging the U.S. court to quash the subpoena, BHP had already submitted to that jurisdiction’s process. Asking an English court to intervene after participating in the U.S. process undermined arguments of comity (mutual respect between courts).

Implications for international litigation

This judgment is not just a procedural footnote; it serves as a robust precedent for how English courts view the use of section 1782 of Title 28.

For Claimants

This is a green light—albeit a cautious one. It confirms that seeking evidence abroad using foreign procedures is a permissible strategy, even when the substantive dispute is anchored in the UK. Suppose you have legitimate grounds to seek early evidence to frame your claim. In that case, English courts are unlikely to view this as oppressive conduct. It validates the “leave no stone unturned” approach to pre-action evidence gathering.

For Defendants

The judgment serves as a cautionary tale. Attempting to pre-emptively block foreign depositions via an anti-suit injunction is a high-risk strategy that may fail. If you intend to challenge the use of foreign evidence-gathering tools, you must act swiftly. Furthermore, engaging with the foreign court first (e.g., filing a motion to quash in the U.S.) may severely weaken your position if you later try to seek an injunction in England.

For Practitioners

Whether you work in commercial litigation, arbitration, or construction disputes, this case highlights that the pre-action stage remains open to the use of foreign procedures. The English courts appear reluctant to interfere with these mechanisms without strong, concrete evidence of abuse or oppression.

Conclusion

The Mariana Dam litigation continues to generate significant legal questions. Still, on the specific issue of cross-border evidence, the TCC has spoken clearly. The decision reinforces the utility of section 1782 of Title 28 as a tool for global discovery. It signals that English courts will respect legitimate attempts to gather evidence abroad.

For legal teams, the takeaway is clear: timing is everything. Claimants can be bold in their search for evidence. At the same time, defendants must decide their strategy—fight abroad or fight at home—early and decisively. As cross-border disputes become the norm rather than the exception, understanding these jurisdictional nuances will be the difference between finding the smoking gun and being barred from looking for it.

To learn more about Philip Rubens and further legal services, get in touch here.