GFH Capital Ltd v Haigh & Ors

Apparent bias is assessed by asking whether a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility of bias. A judge’s membership of a barristers’ chambers does not ordinarily create such an appearance where the chambers’ connection with the dispute is peripheral and the judge can approach the case independently. Nor does part-time judicial service in a foreign commercial court disqualify a judge merely because allegations have been made against that foreign state or because the court is funded by an entity with an indirect interest in a party. Proceedings may be stayed rather than struck out where related foreign proceedings remain ongoing and may produce an enforceable judgment, avoiding unnecessary duplication and expense.

The claimant sought to enforce in England an immediate judgment obtained in Dubai against the first defendant. The first defendant applied to set aside an order made by Sir Andrew Smith on grounds of apparent bias, relying on the judge’s membership of Fountain Court Chambers, his part-time judicial role in the Abu Dhabi Global Market court, and an indirect financial connection between that court’s funder and the claimant.

After the application was heard, the Dubai Court of Appeal set aside the Dubai summary judgment and directed that the claim be decided at trial. The issues were whether the apparent-bias application was well founded and whether the English proceedings should be stayed or struck out pending the Dubai proceedings.

1. Apparent bias. The applicable test, derived from Porter v McGill [2002] 2 AC 357, was whether a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the judge was biased.
2. The judge’s membership of Fountain Court Chambers did not create such a possibility. The disputed invoices were said to be forged and the chambers’ evidence supported that conclusion. The chambers’ involvement did not reasonably suggest that Sir Andrew Smith would approach the issues other than independently and with an open mind.
3. His part-time judicial service in a separate Abu Dhabi commercial court did not create an appearance of bias merely because the defendant had made serious allegations against the police and government of Dubai. Independent judges must be capable of adjudicating claims involving foreign executives or governments fearlessly and impartially.
4. The fact that the Abu Dhabi court was funded by an investment group which also had an indirect stake in the claimant did not establish apparent bias. The court was constitutionally independent, and the investment formed only a small part of the group’s portfolio.
5. The application was unfounded, dismissed and certified as totally without merit.
6. The English claim could not proceed on the basis of the Dubai immediate judgment after that judgment had been set aside. A stay was preferable to striking out because the Dubai proceedings continued, there was a real prospect of a successful judgment capable of enforcement in England, and a stay avoided the claimant having to issue fresh proceedings and pay a further fee. The claim was stayed with liberty for either party to apply. Costs were summarily assessed at £15,000, but no order for payment was made.

The claim was based on an immediate judgment given in Dubai on 10 November 2016. The Dubai Court of Appeal set that judgment aside on 22 November 2017, with the result that the claim required a trial. The present court stayed the English proceedings pending the outcome in Dubai.