Commercial Judge Refuses to Recuse Himself

Posted: 5th November 2012

A judge of the Commercial Court who has for three years presided over a complex dispute - delivering no less than 26 interim judgments concerning the matter - has refused an application to recuse himself from hearing the substantive issues after concluding that a fair-minded bystander would not consider that there was an appearance of bias on his part.

The case concerns disputed allegations that one of the defendants, Mukhtar Ablyazov, when chairman of a bank in Kazakhstan, procured the bank to make loans to off-shore companies owned or controlled by him without disclosing his interest in those companies and that such conduct was in breach of duty, dishonest and fraudulent.

Since August 2009, the judge has delivered a large number of rulings on preliminary issues in the case and has issued an asset freezing injunction against Mr Ablyazov and committed him to prison for 22 months for contempt of that order. In those circumstances, Mr Ablyazov’s lawyers argued that the judge should recuse (exclude) himself from hearing three separate actions in which he is a defendant.

Refusing that application, the judge accepted that he had had a long and extensive involvement in the case but ruled that it would be unfair to other parties to the litigation and contrary to the reality and appearance of justice to recuse himself at such a late stage of the proceedings. Mr Ablyazov had waived his right to seek recusal by failing to make his concerns known at an earlier stage and the judge said that a right-thinking observer would conclude that there was no real possibility that he would be biased by reason of pre-judgment.