Nam Tai Property Inc. v Greater Sail Ltd
| Jurisdiction | British Virgin Islands |
| Judge | Jack, J |
| Judgment Date | 14 March 2022 |
| Neutral Citation | VG 2022 HC 17 |
| Judgment citation (vLex) | [2022] ECSC J0314-3 |
| Docket Number | CLAIM No. BVIHC (COM) 2022/0016 |
| Court | High Court (British Virgin Islands) |
EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
(COMMERCIAL DIVISION)
CLAIM No. BVIHC (COM) 2022/0016
Claim No. BVIHC (Com) 2022/0042
(a company incorporated in the British Virgin Islands)
(a company incorporated in the Cayman Islands)
(a company incorporated in the People's Republic of China)
(a company incorporated in the British Virgin Islands)
(a company incorporated in the British Virgin Islands)
(a company incorporated in the Cayman Islands)
(a company incorporated in the People's Republic of China)
(a company incorporated in the British Virgin Islands)
(also known as Gigi Lee)
Mr. Edward Davies QC and Mr. Ben Griffiths, with them Mr. Nicholas Burkill of Ogier for the Claimants
Ms. Sue Prevezer QC, Mr. Ben Woolgar and Mr. Gerard Clarke, with them Mr. Andrew Emery of Emery Cooke for the Defendants
Jack, J [Ag.]: On 11 th March 2021 I handed down judgment on a jurisdictional forum challenge which the defendants brought as to the claim being pursued in this Territory. I shall use the same shorthand and shall not repeat the background facts as set out in that judgment.
There are three applications before me. Firstly, an application dated 28 th February 2022 by Greater Sail that I should recuse myself. Secondly, an application of the same date again by Greater Sail for an extension of time for compliance with my order of 31 st January 2022. This application was amended on 8 th March 2022 to add a claim for relief from sanctions pursuant to CPR 26.8. Thirdly, an application by fixed date claim form in action BVIHC ( COM) 2022/0042 by the claimants for declarations that Greater Sail, Ms. Lee and Mr. Mai are in contempt of court and that Greater Sail be subject to sequestration, that Ms. Lee and Mr. Mai be committed to HM Prison Balsam Ghut and that all three be fined.
I shall deal with the first application first. With one minor exception, there was no dispute as to relevant law. Both sides were content to rely on the authorities cited in Goldteam Group Ltd v Qin Hui and others. 1 I noted in that case that the law was summarised by Freeman J in Surrey Heath Borough Council v Robb, 2 as follows:
“19. It is of fundamental importance that judicial decisions should be made free from bias or partiality. It has long been recognised that justice must
not only be done, it must also be seen to be done see R v Sussex Justices, ex parte McCarthy. 320. The classic statement in respect of the legal test for apparent bias is not in dispute. It is taken from… the speech of Lord Hope in Porter v Magill, 4 whether:
‘the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.’
21. As Lord Hope stated at [102–103], this was a minor modification from the test used in re Medicaments and Related Class of Goods (No.2) 5 per Lord Phillips MR at [85]:
‘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… that the tribunal was biased.’
22. [Counsel for the defendants] helpfully drew attention to the judgment of Lord Hope in Helow v Secretary of State for the Home Department 6 setting out the characteristics of the notional fair-minded and informed observer as follows:
'2. The observer who is fair-minded is the sort of person who always reserves judgment on every point until she has seen and fully understood both sides of the argument. She is not unduly sensitive or suspicious, as Kirby J observed in Johnson v Johnson. 7 Her approach must not be confused with that of the person who has brought the complaint. The “real possibility” test ensures that there is this measure of detachment. The assumptions that the complainer makes are not to be attributed to the observer unless they can be justified objectively. But she is not complacent either. She knows that fairness requires that a judge must be, and must be seen to be, unbiased. She knows that judges, like anybody else, have their weaknesses. She will not shrink from the conclusion, if it can be justified objectively, that things that they have said or done or associations that they have formed may make it difficult for them to judge the case before them impartially.
Then there is the attribute that the observer is ‘informed’. It makes the point that, before she takes a balanced approach to any information she is given,
she will take the trouble to inform herself on all matters that are relevant. She is the sort of person who takes the trouble to read the text of an article as well as the headlines. She is able to put whatever she has read or seen into its overall social, political, or geographical context. She is fairminded, so she will appreciate that the context forms an important part of the material which she must consider before passing judgment.23. In Locabail (UK) Limited v Bayfield Properties Ltd, 8 it was stated by Lord Bingham CJ, Lord Woolf MR and Sir Richard Scott V-C in a joint judgment at [25] that:
‘…By contrast, a real danger of bias might well be thought to arise if…. on any question at issue in the proceedings before him the judge had expressed views, particularly in the course of the hearing, in such extreme and unbalanced terms as to throw doubt on his ability to try the issue with an objective judicial mind (see Vakauta v Kelly 9); or if, for any other reason, there were real ground for doubting the ability of the judge to ignore extraneous considerations, prejudices and predilections and bring an objective judgment to bear on the issues before him. The mere fact that a judge, earlier in the same case or in a previous case, had commented adversely on a party or witness, or found the evidence of a party or witness to be unreliable, would not without more found a sustainable objection. In most cases, we think, the answer, one way or the other, will be obvious. But if in any case there is real ground for doubt, that doubt should be resolved in favour of recusal. We repeat: every application must be decided on the facts and circumstances of the individual case. The greater the passage of time between the event relied on as showing a danger of bias and the case in which the objection is raised, the weaker (other things being equal) the objection will be. Finally, [counsel for the claimant] drew to the attention of the Court a further passage in Locabail… to the following effect: Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.’”
I proceeded to note:
“[6] Mr. Baird, for Goldteam, took a neutral stance on the application, ‘because’, as he put it in his skeleton, ‘as a matter of principle, it is not for the parties to choose their own judge.’ He helpfully drew drew my attention
to our Court of Appeal's decision in Riley v Attorney General, 10 which cited the leading cases cited above. Our Court of Appeal laid particular weight on the English Court of Appeal decision in Otkritie International Investment Management Ltd v Urumov, 11 which held:‘There must be substantial evidence of actual or apparent bias before the general rule can be satisfied. The issue of recusal is extremely fact sensitive and recusal ought not to be lightly done. Bias is not to be imputed to a judge by reason of his previous rulings or decisions in the same case in which a party has participated and been heard) unless it can be shown that he is likely to reach his decision by ‘reference to extraneous matters or predilections or preferences’. [B]ias is not to be imputed to a judge by reason of his previous rulings or decisions in the same case.’
[7] He also drew my attention to JSC BTA Bank v Ablyazov, 12 where the first instance judge had held the defendant to be in contempt of a freezing order and to have lied while being cross-examined about his assets. The judge refused to recuse himself from subsequent involvement in the case. That decision was upheld by the Court of Appeal, which asked itself ‘whether there could be any difference between the judge who bears in mind his own findings and observations and another (second) judge who reads what the first judge has written, as he must be entitled to do’, and answered at paras [69]–[70]:
‘[U]nless the first judge has shown by some judicial error, such as the use of intemperate, let me say unjudicial, language, or some misjudgement which might set up a complaint of the appearance of bias, the fair-minded and informed observer is unlikely to think that the first judge is in any different position from the second judge — other than that he is more experienced in the litigation. In this connection, it seems to me that the critical consideration is that what the first judge does he does as part and parcel of his judicial assessment of the litigation before him: he is not ‘pre-judging’ by reference to extraneous matters or predilections or preferences. He is not even bringing to this litigation matters from another case… He is judging the matter before him, as he is required by his office to do. If he does so fairly and...
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