JSC BTA Bank v Mukhtar Ablyazov & Ors (1 November 2012)
A fair-minded observer would not conclude that there was a real possibility that a judge, who had made findings adverse to the first defendant when finding that he was in contempt of court, would be biased when deciding the issues at trial. In any event, the first defendant had waived his right to apply for the judge's recusal by not making such an application at the pre-trial review, which amounted to a representation that he had no objection to the judge trying the case.
The first defendant (X) applied for an order that the judge recuse himself from trying three actions brought against X by the claimant bank (J). J and the represented defendants opposed X's application.
The trial, expected to last at least three months, was due to begin. The judge whose recusal was sought had had a long and extensive involvement with the case. In particular in February 2012 he had disbelieved X's evidence on oath and found him guilty of contempt for failing to disclose his assets in breach of a freezing order.
X contended that, if the judge were to hear the trial, a fair-minded and informed observer would conclude that there was a real possibility that he would appear biased, given his previous findings and issues and material previously considered by him or on which he had expressed a view. J submitted that X had delayed in making the instant application such that he had waived his right to complain of apparent bias.
(1) Delay in making an application for recusal could be regarded as a waiver of the right to make such an application, Locabail (UK) Ltd v Bayfield Properties Ltd (Leave to Appeal)  Q.B. 451 and Baker v Quantum Clothing Group  EWCA Civ 566,  C.P. Rep. 38 applied, AWG Group Ltd (formerly Anglian Water Plc) v Morrison  EWCA Civ 6,  1 W.L.R. 1163 considered. The language of waiver was apt because it explained why the right to an impartial tribunal under the European Convention on Human Rights 1950 art.6 might be lost (see paras 15-19 of judgment). (2) X made no application for the judge to recuse himself in the months that followed the contempt judgment notwithstanding that it was known that he was to be the trial judge and that a pre-trial review was listed to be heard in June 2012. Further, neither at the hearing of other applications in July nor at the adjourned pre-trial review hearing in early October did X mention that he intended to apply for the judge's recusal. X provided no explanation for the delay in making the application. By not seeking the judge's recusal at the pre-trial review X represented that he had no objection to his trying the case, and had to be regarded as having waived his right to apply for his recusal on the basis of the findings in either the contempt judgment or the judgment following the July applications. To permit X's application at such a late stage would be unfair to the other parties and would undermine both the reality and the appearance of justice, Locabail applied (paras 20-28). (3) As the judge nominated to hear the trial, he had a duty to try it. However, if there was a doubt, it should be resolved in favour of recusal, Locabail and AWG Group applied. Some of the judge's existing findings against X would or might be relevant at trial, but they were likely to give rise to an issue estoppel between X and J. Therefore, the fact that the judge had determined, or pre-judged, those matters was no bar to a fair trial and could not amount to an appearance of bias. It was likely that the reasoning that the judge followed to reach decisions as to X's ownership of certain companies would be urged upon him by J in respect of other companies. However, whether or not a particular company was owned by X would depend on the evidence in relation to that company, and the issues decided on the contempt application were much narrower than those that J would have to prove to establish its cause of action against X. The instant case was not akin to a judge hearing an appeal against his own decision, Sengupta v Holmes  EWCA Civ 1104, Times, August 19, 2002 considered. Nor was it like one in which a judge who had heard a disclosure application against a third party in the defendant's absence and without his knowledge should have recused himself from hearing an application to commit the defendant for contempt; in the instant case the contempt proceedings were heard in X's presence and gave rise to one or more issue estoppels, Phillips v Symes (A Bankrupt)  EWCA Civ 533,  1 W.L.R. 2986 distinguished. It was true that defendants other than X would not be bound by such issue estoppels as bound X and J. However, the fair-minded observer would conclude that there was no real possibility that the judge would be biased against those defendants not bound by any issue estoppels. The judge's adverse findings regarding X's credibility would not be the subject of an issue estoppel. However, any judge who heard the trial would have to bear in mind the fact of those findings, Secretary of State for the Home Department v AF  EWCA Civ 117,  1 W.L.R. 2528 considered. In any event, the question of X's credibility was academic as X had said he would take no part in the trial and therefore there would be no evidence from him. In conclusion, the fair-minded observer, noting all the circumstances, and that there was no allegation that the judge had unfairly determined any of the previous applications and that up to and beyond the pre-trial review X had given no indication that he feared that the judge would pre-judge the case against him, would conclude that there was no real possibility that the judge would be biased against him at trial by reason of pre-judgment. Neither was there any real possibility of bias by reason of the judge having read much evidence on without notice applications that would not be in evidence at trial. However, even if there had been a possibility of bias, X's application would have been dismissed as he had waived his right to make such an application (paras 30-46, 48-56).