Otkritie International Investment Management Ltd and Others v Georgy Urumov and Others
| Jurisdiction | England & Wales |
| Judge | Mr Justice Eder |
| Judgment Date | 29 April 2014 |
| Neutral Citation | [2014] EWHC 1323 (Comm) |
| Court | Queen's Bench Division (Commercial Court) |
| Date | 29 April 2014 |
[2014] EWHC 1323 (Comm)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Royal Courts of Justice, Rolls Building
Fetter Lane, London, EC4A 1NL
Mr Justice Eder
Mr Nathan Pillow (instructed by Hogan Lovells) for the Claimants
Mr Georgy Urumov, unrepresented
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
(RECUSAL)
Introduction
Following the trial in these proceedings, I delivered my Judgment on 10 February 2014 (the "Judgment"). Thereafter, the claimants issued applications seeking permission to proceed with committal proceedings against a number of the individual defendants, including Mr Georgy Urumov. I have fixed a date for the hearing of those applications on 29 April 2014.
Meanwhile, Mr Urumov (who is now a litigant in person) applied (by email of 24 March 2014) that I should recuse myself in relation to the claimants' application for permission to make a committal application against him and generally with regard to any committal proceedings against him. Thereafter, pursuant to my order, the claimants and the Mr Urumov both served written submissions (the "first round submissions"). Following receipt of such written submissions, I became aware of a decision of Andrew Smith J in Dar Al Arkan v Majid Al-Sayed Bader Hashim Al Refai [2014] EWHC 1055 (Comm) (" Dar") which he delivered on 11 April 2014 and which I considered might be of relevance to the present recusal application. I therefore invited the parties to serve further written submissions which were duly served (the "second round submissions").
The basis of Mr Urumov's recusal application
In the first round submissions, Mr Urumov advances three main grounds in support of his recusal application which were, in summary, as follows.
Ground 1: Prejudgment ?
First, Mr Urumov says that this is a case of "apparent bias" because there is a "complete overlap" between the issues I determined in my Judgment and the claimants' intended committal proceedings. In particular, Mr Urumov says that it is obvious and beyond any doubt that any "reasonable observer" who reads the Judgment will find that I have already formed my opinion on the future committal proceedings since I effectively "pre-judged" them. In that context, he refers to various authorities including: Livesey v. New South Wales Bar Association (1983) 151 CLR 288, Bahai v. Rashidian [1985] 1 WLR 1337, Symphony Group v. Hodgson [1994] QB 179, Locabail (UK) Ltd v. Bayfield Properties Ltd [2000] QB 451, In re Medicaments and Related Classes of Goods (No 2) [2001] 1 WLR 700, Sengupta v. Holmes [2002] EWCA Civ 1104, Porter v. Magill [2002] 2 AC 357, Lawal v. Northern Spirit [2003] HRLR 29, Phillips v. Symes (No 3) [2005] 1 WLR 2986, AWG Group Ltd v. Morrison [2006] 1 WLR 1163, Helow v. Secretary of State for the Home Department [2008] 1 WLR 2416, and Secretary of State for the Home Department v. AF (No 2) [2008] 1 WLR 2528. In addition, he refers to three authorities in the European Court of Human Rights, namely Hauschildt v. Denmark (1989) 12 EHRR 266, Thomann v. Switzerland [1996] ECHR 17602/91, and Morel v. France (2000) 33 EHRR 47.
Further, Mr Urumov says that the issues which arose at trial and which I have already considered in my Judgment "totally overlap" with those which I will (unless I recuse myself) have to decide at any committal proceedings. Thus Mr Urumov states in his email:
" These committal proceedings are nothing more than an attempt to re-run and re-litigate the same trial issues that were already considered by the Judge and to have a second bite at the cherry. I consider these committal proceedings as vexatious and I believe I am entitled to "Protection from Harassment Act 1997". The strong evidence of pre-judgement in respect of the committal proceedings is a good enough reason for recusal in itself. In fact the issues that the Claimants are seeking to persuade [Eder J] to find me in contempt were already determined by [Eder J] at trial and hence are pre-judged by Mr Justice Eder …"
In particular, Mr Urumov refers specifically to the four "grounds" which are the subject-matter of the claimants' application for permission to proceed with committal proceedings viz that he:
i) Knowingly and deliberately gave false information as to (i) (proprietary funds; and (ii) assets, pursuant to and in breach of disclosure orders made ancillary to a freezing order (Ground 1);
ii) Breached the terms of the said freezing order by deliberately dissipating assets after being on notice of the terms of the order (Ground 2);
iii) Made a false disclosure statement (for which he signed a false statement of truth) without an honest belief in their truth, (i) disclosing as genuine documents which he knew were fakes or shams or both; and (ii) failing to disclose documents he knew he was required to disclose (Ground 3);
iv) Made false statements in a statement of case (for which he signed a false statement of truth), knowing them to be false and therefore without an honest belief in their truth (Ground 4).
As to Ground 1, Mr Urumov says that I have already "pre-judged" this issue: see para 309 of my Judgment. As to Ground 2, Mr Urumov accepts that this is not "pre-judged" but that it relates to an insignificant amount ie £40 and that it would be completely disproportionate and unconscionable to send him (or indeed anyone) to prison for any failure in respect of such amount in the particular circumstances of the present case. As to Ground 3, Mr Urumov says that I have again already "pre-judged" this issue: see para 98 of my Judgment. Further, he submits that my conclusion as set out in that paragraph is, in effect, obviously wrong and that this shows an apparent strong bias against him and an obvious reason for me to recuse myself. As to Ground 4, Mr Urumov says that I have again already pre-judged this issue: see para 319 of my Judgment. On this basis, Mr Urumov submits that there is no doubt that any fair minded and informed observer would conclude that there is "inevitable bias" in relation to subsequent committal proceedings.
Ground 2: "Beyond Reasonable Doubt"?
Second, Mr Urumov says that many of the conclusions which I reached in my Judgment were, in effect, expressed in terms of a heightened level of certainty i.e. "no reasonable doubt". In particular, he refers (by way of example) to paras 34, 133, 138, 151, 189, 192, 207, 209, 240, 309, 319, 331 and 332 of my Judgment. Given this level of expressed certainty, Mr Urumov says that, unless I recuse myself, I would be "undoubtedly biased" against him in the committal proceedings; that any fair minded and informed observer would conclude that there is inevitable bias in relation to subsequent committal proceedings; and that there is no doubt that, unless I recuse myself, I am effectively being asked to "seal the deal" now by sending Mr Urumov to prison without a fair trial.
Ground 3: Apparent bias: alleged unpunished claimants' breaches ?
Finally, Mr Urumov says that this is a case of "apparent bias" because the claimants' lawyers have failed in their duty as officers of the court by "withholding" relevant authorities; that this will no doubt cause him "irremediable damage"; but that such failings have gone "unpunished". Mr Urumov also says that the claimants have been guilty of breaches of their own disclosure obligations and repeated perjury which have not only gone unpunished but have been "complimented" by me. In that context, Mr Urumov refers to three "examples" by reference to paragraphs 94 and 102 of my Judgment and to what Mr Urumov says is "perjured evidence" in the 7 th affidavit of Mr Dooley, the claimants' solicitor. As to the latter, the main thrust of Mr Urumov's complaint is that I failed to criticise Mr Dooley or initiate committal proceedings against him or the claimants; and that it is "absolutely obvious" that the claimants have good reasons to believe that they had and will continue to enjoy "favouritism" and "charitable views" from me. Although advanced under the heading "apparent bias", it seems to me that this last allegation is, in effect, tantamount to an allegation of actual bias which is a very serious allegation indeed.
In his second round submissions, Mr Urumov submits that Dar greatly reinforces his earlier submissions. In particular, Mr Urumov draws my attention to paragraphs 32–38 of Dar including the reference in paragraph 32 to Porter v Magill and Davidson v Scottish Ministers [2004] UKHL 34 and the summary of the governing principles as stated by Andrew Smith J at paragraph 33 of his Judgment viz.
" 33. The governing principles were not controversial:
i) The test of apparent bias laid down in Porter v Magill reflects Strasbourg jurisprudence, and there is no relevant distinction between the common law and the requirements of article 6 of the European Convention on Human Rights.
ii) Apparent bias is not demonstrated by "the mere fact that a judge, earlier in the same case or a previous case, has commented adversely on a party or a witness, or found the evidence of a party or witness to be unreliable": per Bingham LCJ, Lord Woolf MR and Sir Richard Scott V-C in Locabail (UK) Ltd v Bayfield Properties Ltd , [2000] QB 451at para 25.
iii) However, there are circumstances in which, as it was put by the High Court of Australia in Livesey v New South Wales Bar Association (1983) 151 CLR 288, 300 , "… a fair-minded observer might entertain...
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