Dar Al Arkan Real Estate Development Company & Anor v Al-Sayed Bader Hashim Al Refai & Ors

The timing of a committal application is a matter for case-management discretion. There is no rule requiring civil contempt proceedings to await trial. The court should balance the purposes of contempt jurisdiction, including punishment, deterrence and protection of the integrity and fairness of the proceedings, against overlap with the substantive issues, satellite litigation and efficient use of resources.

A judge should recuse himself where a fair-minded and informed observer would conclude that there is a real possibility of apparent bias. Detailed adverse credibility findings on essentially the same evidence and issues may require recusal, even where the earlier decision applied a different standard of proof. Questions about the admissibility or use of the earlier judgment should ordinarily be left to the judge hearing the committal application.

The claimants had obtained interlocutory orders requiring preservation and delivery of hard drives. Kroll Associates UK Limited subsequently issued a committal application alleging breach of those orders and seeking fines and imprisonment. The application raised questions about its timing, whether Mr Justice Andrew Smith should recuse himself, and how his earlier judgment in the litigation could be used.

The earlier judgment had made detailed findings that the claimants’ witnesses were dishonest and that Sheikh Abdullatif had knowingly breached the preservation undertaking. The committal allegations concerned substantially the same conduct and evidence. The central issues were whether the application should be heard before the 2015 trial, whether the judge’s earlier findings created apparent bias, and whether directions should be given in advance on the admissibility of the earlier judgment.

1. Timing. The committal application was ordered to be heard well before trial. The court’s case-management discretion is broad; there is no rule of law governing the timetable. Overlap with the substantive proceedings is a factor, but does not itself require postponement.
2. The purposes of civil contempt proceedings include punishment, deterrence, encouraging future compliance where possible, and upholding the authority and fairness of the court’s process. The alleged breaches concerned preservation of potentially important evidence and were sufficiently serious to justify an early hearing if proved. An early determination would give the court greater leverage to impose effective sanctions and protect procedural fairness.
3. The overlap with the trial did not justify delay. The relevant evidence was already available, the allegations were specific and limited, and the issues were peripheral to the main dispute. The cautions in JSC BTA Bank v Ereshchenko [2013] EWCA Civ 829 were principally directed to criminal contempt proceedings and did not establish a general rule applicable to this civil committal application.
4. Recusal. The judge recused himself. The apparent-bias test is whether a fair-minded and informed observer would conclude that there was a real possibility of bias. Earlier adverse findings do not automatically require recusal, but detailed findings that the same witnesses were dishonest, on issues likely to be crucial to the committal application and on substantially similar evidence, went beyond ordinary adverse comment. The difference between the civil and criminal standards of proof did not remove the appearance that the same questions would have to be decided again.
5. Use of the earlier judgment. The court declined to rule in advance on admissibility or the permissible use of the earlier judgment. Those questions depended on the issues, evidence and purpose for which the judgment would be relied on, and were best determined by the judge hearing the committal application.

First-instance case-management and recusal decision. The judgment records that the claimants were challenging the split-trial order and that an earlier decision on the power to imprison Sheikh Abdullatif was under appeal, but no appellate outcome is stated.