Michael Wilson & Partners Ltd v CJSC Kazsubton
| Jurisdiction | England & Wales |
| Judge | Master Yoxall |
| Judgment Date | 12 November 2020 |
| Neutral Citation | [2020] EWHC 2957 (QB) |
| Court | Queen's Bench Division |
| Date | 12 November 2020 |
| Docket Number | Claim No. QB-2003-000001 |
[2020] EWHC 2957 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
As at: Royal Courts of Justice,
Strand, London, WC2A 2LL
Master Yoxall
Claim No. QB-2003-000001
(formerly: HQ03X03979)
and
Joseph Dalby SC (instructed by Michael Wilson & Partners Ltd) for the Claimant
Giles Maynard-Connor (instructed by Addleshaw Goddard) for the Third Party Hearing Date (by Skype): 18 th August 2020
I direct that pursuant to CPR r.39.9 (1) this judgment will not be tape recorded or digitally recorded and that copies of this Judgment as handed down may be treated as authentic
This is an application by the Claimant dated 27 th April 2020 for an order that my order dated 26 th March 2020 be set aside and that the Claimant's recusal application dated 2 nd October 2019 be reinstated.
The 26 th March 2020 order
My order of the 26 th March 2020 is an unusual order made in unusual circumstances. By an application dated and issued on the 2 nd October 2019, the Claimant sought an order that I recuse myself “from all and any further involvement in these proceedings, and with immediate effect, on the basis of apprehended bias”. On the 22 nd October 2019, the Claimant and Third Party having provided me with their and, presumably, their counsel's available dates, I listed the application for hearing on 13 th January 2020 at 2.00pm and notified the parties of the listing by email. In the email I stated that the Claimant must provide me with a hard copy hearing bundle not less than 3 working days before the hearing and that skeleton arguments must be provided by the same time.
On the 13 th January 2020 Mr. Wilson, a solicitor and director of the Claimant, attended the hearing. The Claimant's counsel was unable to attend. Mr. Craig Morrison, of counsel, attended on behalf of the Third Party. Mr. Wilson told me that he had assumed counsel would be available and had tried several other counsel who were not available. The Claimant had filed a hard copy of the hearing bundle that very day and the Claimant's hearing bundle was delivered to me (in the course of the hearing) at 2.45pm. I was able to print off from the court file Mr. Wilson's skeleton argument dated 13 th January 2020. Mr. Wilson also produced a witness statement (his 13 th) dated the 13 th January 2020. Both the skeleton argument and the witness statement were in support of the application to adjourn and the recusal application. 1 Notwithstanding the available written submissions made in support of the recusal application and having previously appeared as an advocate in these proceedings, Mr. Wilson felt unable to proceed without counsel. In all the circumstances, I wished the recusal application to proceed but the hearing ended up being adjourned as there was insufficient time to hear the recusal application. I would add that one of the submissions made by Mr. Wilson in support of the application to adjourn was that the Claimant had no valid notice of the
hearing. I rejected that submission on the basis that I had given direct notice of the hearing to the parties on 22 nd October 2019. 2At the conclusion of the hearing, I made an order directing that the parties provide me with their available dates for the hearing of the recusal application by 20 th January 2020. I also directed that any supplemental skeleton argument (i.e., a skeleton argument by counsel) was to be provided to me not less than 3 working days before the hearing of the application. Costs were reserved.
On the 28 th January 2020, having been provided with the parties' available dates, I listed the recusal application for hearing on 26 th March 2020 at 2.00pm. As matters turned out, this hearing had to be held remotely given the outbreak of the Covid-19 pandemic. On behalf of the Claimant, Mr. Wilson applied for an order that the hearing be adjourned generally to a date when the hearing could be heard in person. The Claimant's counsel did not attend the hearing and I was not provided with a skeleton argument as directed. I refused the application to adjourn and dismissed the recusal application. However, I directed that the Claimant may apply, by application notice, to set aside or vary the order. I also directed that any such application was to be made by 4.00pm 27 th April 2020 and was to be supported by a skeleton argument by counsel setting out the facts and matters relied upon in support of the contention that I should recuse myself. Two half day hearings having been wasted, my object was to oblige the Claimant to properly prepare its application.
I did say that the order was unusual and that it was made in unusual circumstances. I refer to my Notes to that order which, inter alia, set out the protracted correspondence passing between Mr. Wilson and me. For ease of reference, I attach a copy (unsealed) of my order dated 26 th March 2020 as Annex 1. 3
The Claimant duly issued an application on 27 th April 2020 and it was supported by a skeleton argument by Mr. Marc Beaumont of the same date.
In the circumstances, the present application is, in effect, the recusal application. I have not required submissions on the principles relating to the setting aside or variation of orders.
I should mention at this point that by email on 1 st May 2020, I wrote to the parties in relation to the listing of the application with a time estimate of 1 day. I informed the parties that I was due to retire on the 2 nd October 2020 and that if the hearing was to be
Recusal
The hearing of the Claimant's application proceeded on the 18 th August 2020 by Skype (with video). Mr. Joseph Dalby SC appeared on behalf of the Claimant and Mr. Giles Maynard-Connor, of counsel, appeared on behalf of the Third Party.
I have a number of skeleton arguments before me:
[1] Mr. Beaumont's skeleton argument of 27 th April 2020;
[2] Mr. Dalby's supplemental skeleton argument of 14 th July 2020;
[3] Mr. Wilson's skeleton argument of 13 th January 2020; (re adjournment and recusal);
[4] Mr. Morrison's skeleton argument of 23 rd March 2020;
[5] Mr. Maynard-Connor's skeleton argument of 28 th July 2020.
Both Mr. Dalby and Mr. Maynard-Connor adopted the skeleton arguments of their predecessor counsel.
I am grateful for the written and oral submissions of counsel. All the skeleton arguments must be read with this judgment.
I also have Mr. Wilson's 13 th, 14 th and 15 th witness statements [“WS”] and exhibits.
I have been referred to a number of authorities on recusal. I do not propose to rehearse them in full.
In Porter v Magill [2001] UKHL 67; [2002] 2 A.C. 357, HL, the House of Lords approved the test formulated in Re Medicaments and related Classes of Goods (No.2) [2001] 1 W.L.R. 700, CA:
“The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility or a real danger, the two being the same, that the tribunal was biased.” (My emphasis).
I bear in mind that the fair-minded observer is not unduly sensitive or suspicious; see Helow v Secretary of State for the Home Department [2008] UKHL 62; [2008] 1 W.L.R. 2416, HL.
I also bear in mind the following extracts from The White Book 2020 at 1.1.2
… Where there are real grounds for doubt as to a lack of bias, it should be resolved in favour of recusal. The reasonableness of the apprehension must be assessed in the light of the oath of office taken by the judges to administer justice without fear or favour; and their ability to carry out that oath by reason of their training and experience. It must be assumed that they can disabuse their minds of any irrelevant personal beliefs or predispositions ( Locabail (UK) Ltd v Bayfield Properties Ltd [2000] Q.B. 451 at [21]–[25].) Actual or apparent bias against a witness is as serious as bias against or in favour of a party ( Phillips v Symes [2003] EWCA Civ 1769; (2003) 147 S.J.L.B. 1431, CA).
… The disqualification of a judge for apparent bias is not a discretionary matter; either there is a real possibility of bias or there is not. A judge's concerns about the prejudicial effect that their withdrawal would have on the parties and on the administration of justice (delays, costs, listing problems) are not relevant, as efficiency and convenience are not the determinative legal values in this context ( AWG Group Ltd v Morrison [2006] EWCA Civ 6; [2006] 1 W.L.R. 1163, CA (appeal allowed where, shortly before trial, assigned judge realising that a prospective witness was known to him but dismissing defendant's application for recusal)).
… More will be needed to make out such an allegation than the mere fact that a judge has decided applications against a party previously; see, Zuma's Choice Pet Products Ltd v Azumi Ltd [2017] EWCA Civ 2133, CA, at [29]–[30].
I conclude this outline...
To continue reading
Request your trial