Summary

A judge had not erred in refusing to recuse himself as trial judge following his finding of contempt against a defendant, as there was no real possibility of bias and the defendant's failure to make a recusal application earlier in the proceedings had been an unequivocal, informed and voluntary waiver of his right to make such an application.

Facts

The appellant (X) appealed against a judge's refusal ([2012] EWHC 3023 (Comm)) to recuse himself from trying actions brought against X by the respondent bank (J).

The trial, which was expected to last three months, had been imminent when X made his application. The judge had had a long and extensive involvement with the case, and in JSC BTA Bank v Ablyazov [2012] EWHC 237 (Comm) had disbelieved X's evidence on oath and found him guilty of contempt of court for failing to disclose his assets in breach of a freezing order. X sought an order for the judge to recuse himself on the basis of bias. The judge found that a fair-minded observer would not conclude that there was a real possibility that he would be biased and that X had waived his right to apply for the recusal by not making such an application at an earlier stage in proceedings.

Held

(1) Although the principles of apparent bias were well established, their application was wholly fact-sensitive. Although matters of mere convenience could not palliate the appearance of bias, and the application of the doctrine of apparent bias was not a matter of discretion, it was relevant to consider, through the eyes of the fair-minded and informed observer, that there was not only convenience but also justice to be found in the efficient conduct of civil claims with the help of the designated judge. A case for recusal could always arise where a judge had expressed himself in vituperative or intemperate terms. However, that had not been alleged in the instant case. One significant development was the issuing of committal applications in very large and strongly fought civil litigation. As in the instant case, such applications could become a substantial "trial within a trial". The critical consideration was that a judge who had to bear in mind his own findings and observations did so as part and parcel of his judicial assessment of the litigation before him; he was not "pre-judging" by reference to extraneous matters or predilections or preference. If he judged the matter before him fairly and judicially, the fair-minded and informed observer would not consider that there was any possibility of bias, Davidson v Scottish Ministers (No.2) [2004] UKHL 34, 2005 1 S.C. (H.L.) 7 and Secretary of State for the Home Department v AF [2008] EWCA Civ 117, [2008] 1 W.L.R. 2528 considered. The judge in the instant case had at all times been bringing his objective judgement to bear on the material and would continue to do so. Any other judge would have to do the same, on the same material, which would necessarily include the judge's own judgments. The overlap between the issues at the committal proceedings and at trial would be small. The judge had not considered at all the essential causes of action on which the bank had based its claims and any issues decided in the committal proceedings would only play a relatively small role at trial, Morel v France (31430/96) (2001) 33 E.H.R.R. 47 and Sengupta v Holmes [2002] EWCA Civ 1104, Times, August 19, 2002 considered. With regard to the judge's expressed view that the credibility of X and his witnesses at the committal hearing was wanting, he would be in much the same position as any other judge who would be referred to that judgment and the instant court's judgment on the contempt of court question. It was also relevant that there was no suggestion of unfairness against the judge. Irrespective of waiver, the fair-minded and informed observer would consider that there was no real possibility of bias, Locabail (UK) Ltd v Bayfield Properties Ltd (Leave to Appeal) [2000] Q.B. 451 applied (see paras 65-76 of judgment). (2) The question was whether X's failure to request recusal earlier in the proceedings, while still participating, was consistent with his subsequent application. There had been participation, not mere silence, in proceedings before a judge who, on X's case, had conducted himself in such a way as to give rise to the appearance of bias, Allied Marine Transport v Vale do Rio Doce Navegacao SA (The Leonidas D) [1985] 1 W.L.R. 925 considered. Moreover, X was under a duty to speak, arising out of his duty to help the court to further the overriding objective under CPR r.1.3. It was contrary to that duty to allow the court and the other parties to waste time and resources in preparing for a trial which, if the judge had to be replaced, would have to be adjourned to an uncertain date. The instant court was entitled to infer that X knew of his right to object to the judge continuing as trial judge. X had given no explanation for the lateness of his application and the court was obliged to form its own view on the question of knowledge. The timing of X's application was a tactical decision, designed to derail the trial. His failure to object to the judge as trial judge at all times from the delivery of the contempt judgments was an unequivocal, informed and voluntary waiver of any right he had to do so, Locabail applied, Millar (David Cameron) v Dickson [2001] UKPC D 4, [2002] 1 W.L.R. 1615 considered (paras 85-93).

Appeal dismissed