WWRT Limited v Sergiy Tyshchenko and Olena Tyshchenko

A judge is not apparently biased merely because they have earlier decided matters adversely to a party in the same proceedings. Recusal requires substantial evidence of actual or apparent bias, assessed by the fair-minded and informed observer. A party cannot ordinarily use recusal to reopen unappealed substantive findings.

A stay based on Article 34 of the Brussels Regulation (Recast) requires the third-state proceedings to have been pending when the domestic proceedings commenced. A case-management stay remains exceptional. The risk of inconsistent judgments is insufficient where the court has jurisdiction and the foreign proceedings will not bind the parties or finally resolve the dispute. A party may also be barred by abuse of process from raising at a later interlocutory hearing a point that could and should have been raised earlier.

The claimant brought proceedings founded on assignments of rights. The first defendant sought recusal of the judge who had previously heard applications in the proceedings and made findings adverse to the defendants.

He also sought a stay because proceedings in Ukraine challenged the assignments. Some Ukrainian proceedings had begun before the stay application but after the English proceedings; further proceedings began during June 2021. The stay was advanced under Article 34 of the Brussels Regulation (Recast) and under the court’s general case-management powers.

The court also considered costs management and the claimant’s costs of the unsuccessful stay application.

1. Recusal. The application was rejected. The applicable test was whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility of bias. An earlier adverse decision in the same case does not itself establish apparent bias. Recusal may nevertheless be appropriate where there is substantial evidence of actual or apparent bias, an extreme or unjudicial expression of views, a final concluded view on the same issue, or other real grounds for thinking that the decision-maker may rely on extraneous matters or predilections.
2. The defendants’ objections principally challenged the substance of the earlier judgment and orders. Those matters should have been pursued by appeal. The judge had not expressed views in extreme, unbalanced or otherwise unjudicial terms, and the complaints about the hearing transcript did not establish apparent bias.
3. Abuse of process. The application was abusive insofar as it relied on the Ukrainian proceedings commenced in 2020. Those proceedings pre-dated the earlier hearing, and the defendant had considered but failed to advance the stay argument. The Henderson v Henderson principle applies to interlocutory hearings. A point which could and should have been raised earlier cannot ordinarily be raised at a later interlocutory hearing absent a significant and material change in circumstances or genuinely new facts.
4. Article 34. Article 34 was inapplicable because the English court was first seised. The Ukrainian proceedings began after the English claim was filed.
5. Case-management stay. The governing principles required rare and compelling circumstances. The risk of conflicting or inconsistent judgments did not justify a stay where the English court had jurisdiction under the BRR. A stay was also generally inappropriate because the foreign proceedings would not bind the parties, finally resolve all issues, or involve the same parties. The Ukrainian judgments could not create an English issue estoppel or res judicata on the facts found.
6. The stay application was dismissed on the merits in relation to all the Ukrainian proceedings, including those commenced in June 2021. The claimant was ordered to file its costs budget 21 days before the first CMC. The defendant was ordered to pay the claimant’s costs of the stay application, summarily assessed at £150,000 within 14 days.