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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 conduct.

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 certainty.

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 "would 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 Triodos.

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.

Posted: 27.10.2014 at 09:12
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