Otkritie International Investment Management Ltd & Ors v Urumov & Ors

Apparent bias is assessed fact-sensitively by asking whether a fair-minded and informed observer would conclude that there was a real possibility of bias. A judge’s adverse findings, even when expressed with confidence, and substantial overlap between earlier findings and later committal issues do not ordinarily require recusal. Absent special circumstances, the trial judge will usually be best placed to hear subsequent contempt proceedings. However, serious allegations of actual or apparent bias may justify recusal under the precautionary principle, even where the judge considers them groundless.

Following a six-month trial, the judge had made findings adverse to Mr Urumov, including findings of fraud, dishonesty and creation of false documents. The claimants then sought permission to pursue committal proceedings against him. Mr Urumov applied for the judge’s recusal, alleging prejudgment, apparent bias arising from the overlap between the trial findings and the proposed committal proceedings, and actual bias based on alleged unequal treatment of the parties.

The court also considered whether recusal should extend to proposed committal proceedings against other defendants, although those defendants had made no recusal application.

1. Grounds 1 and 2 dismissed. The question of apparent bias was whether a fair-minded and informed observer would conclude that there was a real possibility of bias. The assessment was wholly fact-sensitive.
2. The judge’s adverse comments on a party or witness, findings that evidence was unreliable, and conclusions expressed in clear terms did not by themselves establish apparent bias. Nor did the substantial overlap between the findings at trial and the issues likely to arise in committal proceedings. The earlier findings formed part of the proceedings’ res gestae and would have to be considered for their relevance.
3. Absent special circumstances, it was appropriate and generally preferable for the trial judge to hear an application for permission to bring contempt proceedings and, if permission were granted, the proceedings themselves. The trial judge was likely to be best placed to do so, and the approach was economical and just.
4. Ground 3 upheld. The allegations of actual or apparent bias concerning alleged unequal treatment were serious, although the judge regarded them as groundless. Applying the precautionary principle, and resolving real doubt in favour of recusal, the judge decided that he should recuse himself from the application for permission to pursue committal proceedings against Mr Urumov and from any subsequent committal proceedings against him.
5. The hearing was adjourned. The judge did not finally determine recusal in relation to the other defendants, because they had made no application and the parties had not been heard. Any such issue would need to be addressed at the hearing.

Not stated in the judgment.