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England and Wales High Court (Commercial Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Commercial Court) Decisions >> Otkritie International Investment Management Ltd & Ors v Urumov & Ors  EWHC 1323 (Comm) (29 April 2014)
Cite as:  EWHC 1323 (Comm)
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QUEEN'S BENCH DIVISION
Fetter Lane, London, EC4A 1NL
B e f o r e :
|(1) OTKRITIE INTERNATIONAL INVESTMENT MANAGEMENT LTD|
|(2) OTKRITIE SECURITIES LTD|
|(3) JSC OTKRITIE FINANCIAL CORPORATION|
|(4) OTKRITIE BANK (JSC)|
|(5) OTKRITIE FINANCE LIMITED||Claimants|
Mr Georgy Urumov, unrepresented
Crown Copyright ©
Mr Justice Eder:
The basis of Mr Urumov's recusal application
Ground 1: Prejudgment ?
"These committal proceedings are nothing more than an attempt to re-run and re-litigate the same trial issues that were already considered by the Judge and to have a second bite at the cherry. I consider these committal proceedings as vexatious and I believe I am entitled to "Protection from Harassment Act 1997". The strong evidence of pre-judgement in respect of the committal proceedings is a good enough reason for recusal in itself. In fact the issues that the Claimants are seeking to persuade [Eder J] to find me in contempt were already determined by [Eder J] at trial and hence are pre-judged by Mr Justice Eder ..."
i) Knowingly and deliberately gave false information as to (i) proprietary funds; and (ii) assets, pursuant to and in breach of disclosure orders made ancillary to a freezing order (Ground 1);
ii) Breached the terms of the said freezing order by deliberately dissipating assets after being on notice of the terms of the order (Ground 2);
iii) Made a false disclosure statement (for which he signed a false statement of truth) without an honest belief in their truth, (i) disclosing as genuine documents which he knew were fakes or shams or both; and (ii) failing to disclose documents he knew he was required to disclose (Ground 3);
iv) Made false statements in a statement of case (for which he signed a false statement of truth), knowing them to be false and therefore without an honest belief in their truth (Ground 4).
Ground 2: "Beyond Reasonable Doubt" ?
Ground 3: Apparent bias: alleged unpunished claimants' breaches ?
"33. The governing principles were not controversial:
i) The test of apparent bias laid down in Porter v Magill reflects Strasbourg jurisprudence, and there is no relevant distinction between the common law and the requirements of article 6 of the European Convention on Human Rights.
ii) Apparent bias is not demonstrated by "the mere fact that a judge, earlier in the same case or a previous case, has commented adversely on a party or a witness, or found the evidence of a party or witness to be unreliable": per Bingham LCJ, Lord Woolf MR and Sir Richard Scott V-C in Locabail (UK) Ltd v Bayfield Properties Ltd,  QB 451 at para 25.
iii) However, there are circumstances in which, as it was put by the High Court of Australia in Livesey v New South Wales Bar Association (1983) 151 CLR 288, 300, "... a fair-minded observer might entertain a reasonable apprehension of bias by reason of pre-judgment if a judge sits to hear a case at first instance after he has, in a previous case, expressed clear views either about a question of fact which constitutes a live and significant issue in the subsequent case or about the credit of a witness whose evidence is of significance on such a question of fact".
iv) Cases in which there is any real ground for doubt should be resolved in favour of recusal.
v) A judge should decline to hear a case only for proper and sufficient reason to do so: recusal is not an excuse for avoiding embarrassment.
I was referred to a number of authorities about when a judge should stand aside, but in the end the enquiry is fact specific: see the Locabail case at para 25."
i) It is, in my view, clear from the authorities that apparent bias is not demonstrated by "the mere fact that a judge, earlier in the same case or a previous case, has commented adversely on a party or a witness, or found the evidence of a party or witness to be unreliable": per Bingham LCJ, Lord Woolf MR and Sir Richard Scott V-C in Locabail (UK) Ltd v Bayfield Properties Ltd,  QB 451 at paragraph . To similar effect is the passage from the judgment of Rix LJ in JSC BTA Bank v Ablyazov at paragraph 70.
ii) I do not consider that the fact that I have expressed myself in part in "clear" terms would necessarily justify any different conclusion. Indeed, it would, in my view, be odd if the position were otherwise.
iii) As to the question of "overlap" or "identity of issue", the highpoint of the argument in favour of recusal is the observation of Keene LJ in Sengupta v Holmes  EWCA Civ 1104 at paragraph 44 where he stated that what matters is whether "…a judge in reality is having to decide the same question on which he has previously reached a determination"; and see also Hauschildt v Denmark (1989) 12 EHRR 266 (ECHR). However, as stated by Rix LJ in JSC BTA Bank v Ablyazov at paragraph 72 of his judgment, although "identity of issue" is a test easier to apply than "analogy" or "overlap", absolute identity will lead in the direction of issue estoppel (at least in civil matters) and will not matter.
iv) In any event, quite apart from any issue estoppel and consistent with the observations of Rix LJ in paragraph 69 of JSC BTA Bank v Ablyazov, my findings are part of the res gestae of the proceedings which would need to be considered for any relevance in the context of any committal proceedings. As Rix LJ asked rhetorically: What then is the difference between the judge who bears in mind his own findings and observations, and another judge who reads what the first judge has written, as he must be entitled to do?
v) I recognise that the passage quoted by Andrew Smith J in paragraph 33(iii) of Dar from Livesey v New South Wales Bar Association (1983) 151 CLR 288, 300 when taken in isolation might suggest a different conclusion. However, for the reasons given by Rix LJ in paragraph 63 of JSC BTA Bank v Ablyazov, there were "special circumstances" in Livesey which are not present in the present case.
vi) I also recognise that the decision of Andrew Smith J in Dar including the reasons he gives at paragraphs 36-37 of his Judgment would, at first blush, also appear to favour recusal in the present case. However, as emphasised by Rix LJ in JSC BTA Bank v Ablyazov, the question of apparent bias ultimately turns on the specific facts of each case and I doubt that much, if any, assistance is to be gained by reference to the decision of another judge on the facts in such other case. In any event, as submitted by the claimants, the circumstances in Dar were very different from those in the present case. In particular, the conclusions as expressed in my Judgment were reached (i) after disclosure and exchange of witness statements and (ii) following a full trial over some 6 months during which Mr Urumov was legally represented at all material times and gave oral evidence. In contrast, it would appear from paragraph 48 of the first judgment of Andrew Smith J. in Dar with reference  EWHC 3539 (Comm) that there had been no reciprocal disclosure or exchange of witness evidence in that case and a guillotine had been imposed on the interlocutory cross-examinations of about 3 hours in total. (In addition, the claimants submitted that there was a further difference in that in Dar, Andrew Smith J was concerned that there was a risk that it might appear that he was coming to the trial itself with certain pre-conceptions which for that reason might engage the principles in cases like Hauschildt v Denmark; but, in my view, such consideration appears to play little, if any, part in the reasoning of the Judge.)
vii) In the ordinary course, the recent observations of Lord Clarke (giving the judgment of the Supreme Court) in Summers v Fairclough Homes Ltd  1 WLR 2004 support the approach that absent "special circumstances", it is appropriate and indeed preferable for the trial judge to hear subsequent contempt proceedings. In that case, the defendant applied to strike out the claim against it on the basis that the claimant had deliberately and dishonestly exaggerated his claim (as the trial judge concluded he had). The Supreme Court held that the Court had power to strike out claims on such grounds even after trial; but declined to do so on the facts in that case. In reaching that decision the Court had regard to other measures that might be taken including contempt proceedings as to which the observations of Lord Clarke were as follows:"59. The defendant indicated some reluctance to proceed by way of proceedings for contempt. We, however, see no difficulty in proceedings by way of contempt in such cases, provided of course that the relevant facts can be proved. It was submitted in the course of argument that there might be difficulties in inviting the trial judge to hear applications for permission to bring proceedings for contempt. However, in the absence of special circumstances, we cannot see any difficulty in the trial judge hearing both the application for permission and, if permission is granted, the proceedings themselves. On the contrary, it seems to us that the trial judge is likely to be best placed to hear both. Such an approach is likely to be both the most economical and the most just way to proceed. The only circumstances in which that would not be the case would be where there was apparent bias on the part of the judge: see eg Wilkinson v S  EWCA Civ 95;  1 WLR 1254, per Hale LJ at para 25."This passage reinforces the fourth point identified by Rix LJ in paragraph 65 of his judgment in JSC BTA Bank v Ablyazov where he stated:"Fourthly, although no doubt matters of mere convenience cannot palliate the appearance of bias, and the application of the doctrine of apparent bias is not a matter of discretion (as distinct from assessment on all the facts of the case), it is relevant to consider, through the eyes of the fair-minded and informed observer, that there is not only convenience but also justice to be found in the efficient conduct of complex civil claims with the help of the designated judge."Further, the claimants drew my attention to the specific facts in Summers as referred to in particular in paragraphs 5, 6, 15 and 16 of the Supreme Court Judgment (including the Judge's conclusion in paragraph 59 of his Judgment) that the wrongdoing in that case had been established to the criminal standard i.e. beyond reasonable doubt. On this basis and as submitted by the claimants, it seems to me that Summers was, in relevant respect, on all-fours with the present case.
Other matters ?