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Benjamin Gray on Allegations of Bias in Long and Complex Cases

Benjamin Gray

The Court of Appeal has
handed down guidance on the approach to take to allegations of bias in
long-running cases where a judge has substantial involvement in the prior
stages of a case’s history.


In Otkritie International
Investment Management Ltd v Urumov
[2014] EWCA Civ 1315 Eder
J found that numerous defendants, including Mr Urumov, defrauded the Claimants.
He made a number of damaging findings about his fraudulent and deceptive

The Claimants commenced
contempt proceedings, which sought that Mr Urumov be committed to prison. The
application was made on a number of bases, including giving false disclosure
statements and knowingly making false statements in his statement of defence.
The Claimants sought the permission of the court to bring these proceedings,
and in so doing relied upon findings made in the trial judgment.

Mr Urumov applied for Eder J
to recuse himself on a number of grounds, which were treated as being ones of
actual and apparent bias. The apparent bias was said to have been that the
required fair-minded and well-informed observer would think the Judge had
already decided the committal proceedings in light of the many adverse findings
in the trial judgment and that he had expressed his findings to a high level of

Eder J dismissed the
allegations of actual bias, but granted the application based on apparent bias
with extreme reluctance”. Despite
considering the grounds given of alleged actual bias as “
entirely groundless”, he believed that they were “so serious that the appropriate course is
that I should recuse myself

General Principles

The Court of Appeal
summarised the existing position where a judge hearing an application or a
trial relies upon his own previous findings:

The general rule is that he
should not recuse himself, unless he either considers that he genuinely cannot
give one or other party a fair hearing or that a fair minded and informed
observer would conclude that there was a real possibility that he would not do
so. Although it is obviously convenient in a case of any complexity that a
single judge should deal with all relevant matters, actual bias or a real
possibility of bias must conclude the matter in favour of the applicant; nevertheless
there must be substantial evidence of actual or imputed bias before the general
rule can be overcome. All the cases, moreover, emphasise, that the issue of
recusal is extremely fact-sensitive.


Longmore LJ (with whom the
other Lords Justices agreed) reviewed the authorities and concluded that ‘
bias is not to be imputed to a judge by
reason of his previous rulings or decisions in the same case unless it can be
shown he is likely to reach his decision “by reference to extraneous matters or
predilections or preferences”
’ (quoting with approval JSC BTA Bank v Ablyazov [2013]
1 WLR 2845). The situation is not affected by whether the
allegation is one of actual rather than imputed bias. Nor is the mere fact that
the matter could be dealt with by another judge a good reason for recusal.

The Court emphasised that it
is ‘
important that judges do not recuse
themselves too readily in long and complex cases otherwise the convenience of
having a single judge in charge of both the procedural and substantial parts of
the case will be seriously undermined.

In reviewing those
authorities, the Court of Appeal extracted a number of principles:

  1.  The
    determination of the issues in a case, and in so doing expressing views about
    the parties and witnesses, is not of itself bias, actual or apparent. Rather,
    the judge is simply engaging ‘
    in the
    proper exercise of a judicial function
    ’ – the opposite of bias.
  2. If the
    original judge decided the previous matter fairly, then there is unlikely in
    practice to be much gained by involving a new judge with less experience in the
    litigation. That new judge would have to reach a decision based on the same
    material as the previous one, and this “
    necessarily include [the original] judge’s own judgments
  3. The fact
    that a judge may have made decided many interlocutory applications against a
    party during the case does not, absent any successful attack on their merits,
    establish bias. It will ‘
    be hard to show
    consistent unfairness in the absence of consistent error.
  4. The hypothetical
    observer is ‘
    one who is familiar with the
    detailed history of the proceedings and with the way in which cases of this
    kind are tried
    ’ rather than a brief visitor to the court.

Recusal would be appropriate
where, for example, the issue to be decided in the current application was the
same as one previously decided, or the evidence would be ‘
essentially the same’ as that heard on a previous application.

Such a question, however, may
be one of degree rather than kind. In the present case, the fact that Eder J
had ‘
not focused solely or mainly on the
very issue that the judge will have to decide on the contempt application
but had an ‘
infinitely broader’ ‘canvas of… judgment’ was considered a
relevant distinction. Moreover, the higher standard of proof required for a
contempt application might, coupled with that narrower focus, produce a
different result even if the evidence were essentially the same. A degree of prior decision is therefore
acceptable where it is, at the least, possible that the subsequent decision
could come to a different conclusion.


Allegations of bias are
difficult and delicate matters for judges. There is a natural desire to want to
step to one side, especially where the allegations are serious. The Court of Appeal
observed that it would rarely interfere with a decision made on this sort of
application. They may have felt more willing to do so in this case because of
Eder J’s stated views that he considered the application groundless and was
keen to see his decision overturned.

This judgment is a clear
indication that the Court would like trial judges to handle such allegations
robustly, avoiding recusal where possible. The Court quoted with approval
Chadwick LJ’s view in
Triodos Bank NV v Dobbs [2001] EWCA Civ 468 that a judge should ‘resist
the temptation to recuse himself simply because it would be more comfortable to
do so.

The reasons for doing so are
clear. Too great a readiness to accede to recusal applications where there have
been prior determinations would in practice eliminate the summary character of
post-trial applications such as those for costs. It would also, as noted above,
seriously undermine ‘
the convenience of
having a single judge in charge of both the procedural and substantial parts of
long and complex cases
’. Given a growing trend for parties to bring
committal proceedings post-trial, this is increasingly important.

It must also be correct that
the seriousness of an allegation should not determine whether recusal is
granted. To decide otherwise would, particularly where the allegations are
groundless, open the door to judge-shopping by unscrupulous litigants, as
Chadwick LJ noted in

It is not artificial to treat
a judge who has made adverse findings in an earlier stage of the litigation as
unbiased. The analogy of a fresh judge considering the decisions of the
previous judge is a good one. Judges are used to putting extraneous or
inadmissible considerations out of their mind when reaching decisions, and in
practice are capable of determining new applications with an open mind
irrespective of prior findings.

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