Almazeedi v Penner and another

Apparent bias is assessed by asking whether a fair-minded and informed observer, having considered the facts in their full context, would conclude that there is a real possibility of bias. The inquiry concerns independence and impartiality from the moment the judge is first seized of the case. A satisfactory outcome or absence of demonstrated actual bias does not cure a structural defect. A judge should disclose a concurrent judicial appointment where it may bear on perceived independence. Failure to disclose such an appointment may make it inappropriate to continue, particularly where the litigation involves persons connected with that jurisdiction’s judicial appointments and there are personal or governmental links to the dispute.

The appellant controlled BTU Power Company and was involved in winding-up and liquidation proceedings before Cresswell J in the Grand Court of the Cayman Islands. The economic interests in BTU were held mainly by Qatari entities. The judge had a concurrent appointment as a supplementary judge of the Qatar Civil and Commercial Court, which had not been disclosed.

The Court of Appeal rejected the apparent-bias challenge for the period before 26 June 2013 but accepted it thereafter. The appellant appealed against that temporal limitation. The joint official liquidators cross-appealed against the finding of apparent bias after that date. The central issue was whether the judge’s concurrent appointment created a real possibility of apparent bias, and from what date.

Lord Mance delivered the judgment of the Board, with which Lord Wilson, Lord Hughes and Lord Lloyd-Jones agreed.

1. Applicable principles. Apparent bias is determined by the test stated in Porter v Magill [2001] UKHL 67; [2002] 2 AC 357: whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility of bias. The right to an independent and impartial tribunal is fundamental, as recognised in Millar v Dickson [2001] UKPC D4; [2002] 1 WLR 1615. It cannot be treated as immaterial because the outcome appears unaffected. Perceived impartiality is assessed from the moment the judge is first seized of the case.
2. The observer and disclosure. The observer is neither unduly suspicious nor complacent. The observer must consider all relevant matters in their overall social, political and geographical context, including the risk of unconscious predisposition. The approach in Helow v Secretary of State for the Home Department [2008] UKHL 62; [2008] 1 WLR 2416 was material. The judge ought to have disclosed the concurrent Qatar appointment. Disclosure could itself have dispelled concern, or permitted another Grand Court judge to be deployed.
3. Application. The dispute involved Qatari investors, serious allegations, personal threats and the closely connected positions of Mr Al-Emadi and Mr Kamal. Their roles in Qatari public and financial institutions, together with the opaque arrangements governing the judge’s Qatar appointment, made it unrealistic to distinguish their apparent interests. The Board distinguished Prince Jefri Bolkiah v State of Brunei Darussalam (No 3) [2007] UKPC 62; [2008] 2 LRC 196, because the present case concerned an undisclosed personal concurrent appointment rather than a generally applicable institutional arrangement. A fair-minded and informed observer would regard the judge as unsuitable to hear the proceedings, in the absence of disclosure, from at least 25 January 2012.
4. Disposition. The appellant’s appeal was allowed as regards the period from 25 January 2012 onwards. The joint official liquidators’ cross-appeal was dismissed. The proceedings before the judge were set aside from 25 January 2012 until their conclusion in September 2014. The parties were given 21 days to make submissions on costs.

Dissent. Lord Sumption considered that the apparent-bias test was not satisfied. The fair-minded and informed observer would apply robust common sense and would not treat the hypothetical risk of non-renewal or adverse terms in Qatar as a serious working hypothesis.

1. Court of Appeal of the Cayman Islands. The court rejected the apparent-bias challenge for the period up to 26 June 2013 but accepted it for the period thereafter.
2. Privy Council. The appellant’s appeal was allowed as regards the period from 25 January 2012 onwards. The joint official liquidators’ cross-appeal was dismissed, and the proceedings before the judge were set aside from that date to their conclusion in September 2014.