Mohammed Hassan El Haddad v Khulood Abdulla Hassan Al Rostanami & Ors

Apparent bias is assessed through the eyes of the fair-minded and informed observer. Familiarity with the case, adverse rulings, a judge’s assessment of hearing time, or criticism by a litigant do not, without more, establish a real possibility of bias.

An extended civil restraint order may be extended where the history of totally without merit applications shows that protection of litigants and the court’s finite resources is necessary. It is a proportionate permission filter, not a denial of access to properly arguable claims. The extension decision concerns continuing conduct and risk, rather than relitigating the merits of the underlying dispute.

The claimant applied for the judge’s recusal before the substantive hearing of an application by defendants 1 to 7 to extend an extended civil restraint order for three years. Defendant 8 supported the extension application. The claimant also sought an adjournment, further information and evidence concerning allegations that an earlier judgment had been obtained by fraud.

The court considered whether the judge’s familiarity with the proceedings, previous decisions and case-management directions created apparent bias; whether the alleged fraud issues had to be resolved before the extension application; whether Article 6 or jurisdiction objections prevented an extension; and whether the claimant’s conduct since the original order justified continuing protection for the defendants and the court.

The court refused recusal, dismissed the procedural objections relevant to the extension hearing, extended the ECRO for three years and ordered the claimant to pay costs on the indemnity basis.

1. Recusal. Applying the apparent-bias test stated in Porter v Magill [2002] 2 AC 357, the court held that a fair-minded and informed observer would not regard the matters relied upon as creating a real possibility of bias. Following the principles identified in Otkritie International Investment v Urumov [2014] EWCA Civ 1315, familiarity with the case was an advantage for efficiency and resource management, not evidence of partiality. A possible error in assessing evidence or submissions was a matter for appeal. The initial time estimate and the suggestion that the case be listed before the familiar judge did not show prejudgment.
2. Preliminary applications. The merits of the proposed fraud claim and the correctness of the underlying judgment were not prerequisites to deciding whether the ECRO should be extended. The ECRO arose from the claimant’s conduct in response to court orders, not from the correctness of those orders. Alleged fraud issues could be addressed when permission to amend or pursue the claim was considered. Totally without merit findings were treated as conclusive unless set aside on appeal, following Nowak v Nursing and Midwifery Council [2013] EWHC 1932 (QB). The ECRO regime was compatible with Article 6. A further evidential round was unnecessary because no genuinely new or surprising matter had been identified. Defendant 8 did not have to make a general election on jurisdiction; its participation bound it for this application.
3. Extension of the ECRO. Under the Civil Procedure Rules 1998 and Practice Direction 3C, three or more totally without merit claims or applications were necessary but not sufficient for an ECRO. The ultimate question on extension was whether it was necessary to protect litigants from vexatious litigation and the court’s finite resources from vexatious waste, as explained in Chief Constable of Avon and Somerset v Gray [2019] EWCA Civ 1675. The history of more than 30 notices and at least 19 applications in 32 months, repeated unsuccessful applications and continuing threats of further proceedings showed a continuing risk. Extension was therefore necessary and proportionate. It was made for the maximum three years, without a gap after expiry.
4. Costs. The part of the claimant’s application seeking to postpone the extension decision was dismissed. The application was caused and prolonged by the claimant’s conduct, which was out of the norm. The defendants were therefore awarded their costs on the indemnity basis.

• Court of Appeal: An ECRO had previously been made against the claimant on 19 July 2023 following earlier permission and reopening applications, several of which had been refused or certified totally without merit.
• High Court: In this first-instance decision, the court refused recusal, extended the ECRO for three years from 22 July 2026 and ordered indemnity costs.