JSC BTA Bank v Ablyazov & Ors

An application for judicial recusal must be made as soon as practicable. A sufficiently informed failure to object may amount to waiver, particularly where the applicant participates in a pre-trial hearing without raising recusal. Apparent bias is assessed by asking whether the fair-minded and informed observer would conclude that there is a real possibility of bias. Previous adverse findings do not ordinarily establish apparent bias where they concern distinct issues, may give rise to an issue estoppel, or would be relevant evidence for any judge hearing the case. A judge’s prior consideration of without-notice material does not itself create apparent bias where the trial is determined on the evidence properly before the court.

The claimant bank brought three actions against Mr Ablyazov. Mr Ablyazov applied shortly before the trial for Mr Justice Teare to recuse himself. The judge had managed the litigation, heard numerous interlocutory applications, continued a freezing order, appointed receivers and presided over contempt proceedings in which Mr Ablyazov had been found to have breached the order and sentenced to imprisonment.

The application relied on alleged pre-judgment, overlap between issues previously decided and issues at trial, the judge’s assessment of Mr Ablyazov’s credibility, and his exposure to evidence read on without-notice applications. The central questions were whether the late application had been waived and whether a fair-minded and informed observer would conclude that there was a real possibility of bias.

1. Application dismissed. The application was made at the last practicable moment, after the applicant had participated through counsel in a pre-trial review without indicating any intention to seek recusal. Applying Locabail (UK) Ltd v Bayfield Properties Ltd and Baker v Quantum Clothing Group, delay may amount to waiver. The applicant had full knowledge of the relevant findings and circumstances by the pre-trial review.

2. Apparent bias is assessed by identifying all relevant circumstances and asking whether the fair-minded and informed observer would conclude that there was a real possibility of bias. The common law test corresponds to the requirement of an impartial tribunal under article 6 of the ECHR.

3. Previous findings against a party do not, without more, establish apparent bias. Findings capable of giving rise to an issue estoppel would not be revisited at trial. Other issues would require different evidence and involved matters which had not previously been determined. The judge’s previous assessment of credibility would not prevent a fair assessment of later evidence, although relevant prior lies could properly be taken into account.

4. The judge’s consideration of evidence on without-notice receivership applications did not create a real possibility of bias. The earlier applications concerned whether there was reason to believe that assets were owned by Mr Ablyazov, whereas the trial required proof of the causes of action. Relevant underlying documents would be available at trial, and the judge would decide the case only on the evidence called there.

5. The judge’s making of orders designed to secure compliance with the court’s process was a proper exercise of judicial function, not evidence of bias. In any event, even if apparent bias had been established, the applicant’s delay would have amounted to waiver. The judge therefore declined to recuse himself.