Kawaley J
1 250716 – FSD 273 OF 2024 (IKJ) International Airfinance – Recusal Judgment Neutral Citation Number: [2025] CIGC (FSD) 65 IN THE GRAND COURT OF THE CAYMAN ISLANDS FINANCIAL SERVICES DIVISION CAUSE NO. FSD 273 OF 2024 (IKJ) IN THE MATTER OF THE COMPANIES ACT (2023 REVISION) AND IN THE MATTER OF INTERNATIONAL AIRFINANCE CORPORATION IN CHAMBERS BETWEEN: MOHAMED IDRISS GHODBANE Petitioner -and- (1)MOULAY OMAR EL ALAOUI EL ABDALLAOUI (2) INTERNATIONAL AIRFINANCE CORPORATION Respondents IN CHAMBERS Page 1 of 25 FSD2024-0273 2025-07-16 FSD2024-0273 2025-07-16 Digitally signed by Advance Performance Exponents Inc Date: 2025.07.16 14:51:30 -05:00 Reason: Apex Certified Location: Apex 2 250716 – FSD 273 OF 2024 (IKJ) International Airfinance – Recusal Judgment Before: The Hon. Justice Kawaley Appearances: Mr. Hector Robinson KC and Mr Adam Barrie of Mourant Ozannes (Cayman) LLP, for the Petitioner Mr Michael Todd KC of Counsel with Mr Christopher Levers and Ms Holly Johnston of Ogier for the 1st Respondent The Company did not appear Heard: 27 June 2025 Date of decision: 4 July 2025 Draft Reasons circulated: 8 July 2025 Reasons delivered: 16 July 2025 Recusal-whether fair minded and informed observer would consider that judicial observations made in various case management rulings gave rise to a real possibility of an appearance of judicial bias-Cayman Islands Constitution, section 7-Grand Court Rules (2023 Revision), Preamble, Order 20 rule 8-Companies Winding Rules (2023 Consolidation) Order 25 rule 7- Financial Services Division Users’ Guide, paragraphs A.1, B.2, B5.5 REASONS FOR DECISION Introductory
The Petitioner seeks to wind-up the Company on just and equitable grounds. The Petition was filed on 30 August 2024. He initially relied on allegations of misconduct. At the hearing of the Summons for Directions on 17 September 2024, I encouraged him to add a less contentious plea that the relationship and trust and confidence had irretrievably broken down between him and the 1st Respondent ("R1"). R1’s defence includes the significant plea that the Petition had been improperly presented for collateral motives. I have consistently rejected what I perceived to be attempts by R1 to unnecessarily protract the course of the present proceedings. Finally I listed the trial on dates that I believed R1’s lawyers had confirmed were convenient (28 July-1 August 2025) and declined to reschedule the trial when R1 contended the schedule needed to be changed in light of the Petitioner filing an amendment summons on 31 March 2025 (the “Amendment Summons”). Page 2 of 25 FSD2024-0273 2025-07-16 FSD2024-0273 2025-07-16 3 250716 – FSD 273 OF 2024 (IKJ) International Airfinance – Recusal Judgment
By a Summons dated 3 June 2025, R1 applied for the following substantive relief: “1. An Order that Mr Justice Kawaley recuse himself from adjudicating over further hearings in these proceedings, on the basis of apparent bias and predetermination, in particular having regard to both the content of, and the orders/directions made by, his Lordship's decisions of 10 October and 9 December 2024, 11 March, 9, 15, 24 and 25 April 2025, 1 May 2025 and his Lordship's written reasons of 15 May 2025, which (individually and collectively) demonstrate that there is a real possibility that he may have pre-determined the matter (either generally or with respect to certain substantive issues) against the First Respondent.”
The present application required me to evaluate whether various case management decisions I had made during this litigation, which were overtly designed to advance the proceedings in an expeditious and efficient manner, objectively viewed: (a) suggested a predisposition as to the merits of the case; (b) involved an unfairly hostile approach to R1’s case; and (c) created as a result an appearance of bias which made it either: (i) necessary for me to recuse myself as a matter of law; or (ii) appropriate for me to recuse myself on a precautionary basis.
From the outset it is important to acknowledge that taking a high-level view, I am bound to acknowledge that directions designed to ensure that a just and equitable winding-up petition dated 30 August 2024 was substantially tried in the last week of July 2025 very arguably reflected an excessive concern with expedition on my part. I must also acknowledge that I arguably displayed an excessive zeal for the case management goal of economy by seeking to avoid the need for a trial on contentious issues which, on one view of the law, would not need to be tried. I even more readily accept that my criticisms of what I perceived to be litigation misconduct on R1’s part were, in more than one instance, arguably expressed in overly hyperbolic terms.
However, by the end of the hearing it was also clear that the well settled recusal principles are not designed to determine whether a judge has been guilty of procedurally flawed, clumsy or heavy-handed case management. The appropriate remedy for such judicial failings is an interlocutory appeal or a final appeal following an adverse trial judgment. Where a recusal application is not based on actual or apparent bias flowing from a relationship with one of the parties, but on the way a case has been judicially managed, it must for obvious reasons be established that the impugned judge has done far more than merely causing the recusal applicant Page 3 of 25 FSD2024-0273 2025-07-16 FSD2024-0273 2025-07-16 4 250716 – FSD 273 OF 2024 (IKJ) International Airfinance – Recusal Judgment to subjectively believe that when he comes to consider the merits the judge is likely to find their case to be an unattractive one. The law on recusal The relevant legal test
There was no dispute about the general legal test for apparent bias. R1’s Skeleton Argument set out the following summary of the key principles which Mr Todd KC elucidated in oral argument: “53. The Recusal Summons is made on the grounds of ‘apparent bias’. The test for apparent bias involves a well-established two stage process, as formulated in Porter v Magill [2001] UKHL 67, [2002] 2 AC 357 at [102]-[103] [A/26/857], affirmed by the Supreme Court in Halliburton Co v Chubb Bermuda Insurance Ltd [2020] UKSC 48,
3 WLR 1474 at [52]-[53] [AB/15/414]; and in the Privy Council in Smith v Attorney General of Trinidad and Tobago [2022] UKPC 28 at [1], as follows: ‘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 judge was biased.’
That test has been confirmed as applicable in the Cayman Islands: Perry v Lopag Trust (2021 CICA appeal No. 16 of 2020 at [152]); Jian Ying Ourgame at [15]; and In the matter of Principal Investing Fund I Limited.
It is enough that a fair-minded person would think that there was a real possibility that the judge might, even unconsciously and without any sense of impropriety, prefer one side over another (AWG Group Ltd (formerly Anglian Water Plc) v Morrison
EWCA Civ 6 at [4]-[9]).
It is essential to consider the proceedings as a whole in engaging in the objective assessment of whether there was a real possibility that the judge was biased. That requires that the Court take into account all material circumstances, and not just facts known to the applicant at the relevant time (Virdi v Law Society [2010] EWCA Civ 100,
1 WLR 2840 at [43]-[48]).
The recusal of a judge for apparent bias is not a discretionary matter: either there is a real possibility of bias or there is not. A judge’s concerns about the prejudicial effect that their withdrawal would have on the parties and on the administration of justice (delays, costs, listing problems) are not relevant, as efficiency, convenience and cost are not the determinative legal values in this context (AWG Group Ltd v Morrison
EWCA Civ 6, [2006] 1 WLR 1163 at [6] and Jian Ying Ourgame at [39]). Page 4 of 25 FSD2024-0273 2025-07-16 FSD2024-0273 2025-07-16 5 250716 – FSD 273 OF 2024 (IKJ) International Airfinance – Recusal Judgment
Given the importance attached to the appearance of justice it has been held that where there is any doubt as to whether a fair-minded observer would detect bias, that doubt should be resolved in favour of recusal (Locabail (UK) Ltd v. Bayfield Properties Ltd [2000] QB 451 at 480).”
Before the hearing of the present application, I summarily rejected the submission that the hearing of the present application should be assigned to another Judge. I accepted that this might be appropriate in some cases but was not referred to any examples of when the option of assigning a recusal application to another judge had actually occurred. Nor was I referred to any appellate authority elucidating when such an option might or might not be required. The point was not pursued at the beginning of the present hearing although it was self-evident that the right to challenge this preliminary decision was being pursued by way of the pending application for leave to appeal.
Mr Robinson KC emphasised the importance of remembering the requirement that the fair- minded observer must also be an “informed” one. The critical test is most pithily and recently authoritatively described by Lord Malcolm for the Privy Council in Smith-v-Attorney General of Trinidad and Tobago [2022] UKPC 28 (at paragraph 1): “…The test for such a recusal is whether a fair-minded and informed member of the public who considered the facts would conclude that there was a real possibility that the judge was biased. Sometimes it is asked whether there is a legitimate doubt as to the tribunal’s impartiality, a quality seen as indispensable to the fair administration of justice…” [Emphasis added]
That test, as Mr Todd KC pointed out, has been formally confirmed to reflect the Cayman Islands legal position by the Cayman Islands Court of Appeal in Perry v Lopag Trust (2021 CICA No. 16 of 2020). Application of the recusal test
Because the content of the recusal test was not in dispute, the critical legal question in this case was how to apply the relevant test. The most helpful judicial guidance for these purposes came from the decisions of Justice David Doyle in this Court in In the matter of Principal Investing Fund I Limited, FSD 268-270/2021(DDJ), Judgment dated 21 November 2022 (unreported) , Re Jian Ying Ourgame High Growth Investment Fund (in official liquidation)2022 (2) CILR 144 and Arnage Holdings Ltd-v-Walkers (a firm), FSD 105/2014 (DDJ), Judgment dated 16 June 2023 (unreported). All three cases illustrate how the complaints should be evaluated through the eyes of the fair-minded and informed observer. The latter two cases were particularly instructive, because they also considered a variety of cases dealing with broadly analogous bias complaints (apparent predisposition or partiality, as opposed to a disqualifying relationship). In Ourgame. Doyle J also provided a helpful guide to how the complaints should be evaluated: Page 5 of 25 FSD2024-0273 2025-07-16 FSD2024-0273 2025-07-16 6 250716 – FSD 273 OF 2024 (IKJ) International Airfinance – Recusal Judgment “29 At the end of the day, it is for the judge to stand back, as objectively as he can, and to consider the recusal test, the relevant facts and circumstances and come to a conclusion as to whether he should continue to preside or whether he should recuse…. 30.Looking at the issue through the eyes of a fair-minded and informed observer…”
That is the central judicial task which I was required to undertake. However the approach was also informed by the insightful framing which Mr Robinson KC provided of the way in which the character of the recusal complaint informs the analysis. Most cases where recusal was required were either instances of: (a) lack of independence cases based on connections or relationships; or (b) predisposition cases based on complaints in relation to final decisions.
He submitted that it was extremely rare for an appearance of bias to be found to exist in the context of provisional or preliminary views expressed at the interlocutory stage. The precautionary principle was more likely to be applied in category (a) cases. These were sound arguments for two important reasons of principle. Section 7 of the Constitution provides: “(1) Everyone has the right to a fair and public hearing in the determination of his or her legal rights and obligations by an independent and impartial court within a reasonable time.”
The independence of the Court is a fundamental aspect of fair hearing rights which operates in essentially the same straightforward way at all stages of any proceedings. However the right to a “fair hearing…within a reasonable time” operates in a more flexible and nuanced manner. It requires this Court to manage cases before finally determining them because, inter alia: (a) applicants only have a right to have a full adjudication of arguably meritorious claims; (b) respondents have a right not to be vexed by wholly unmeritorious claims; (c) all parties to proceedings have a right to a final disposition within a reasonable time; and Page 6 of 25 FSD2024-0273 2025-07-16 FSD2024-0273 2025-07-16 7 250716 – FSD 273 OF 2024 (IKJ) International Airfinance – Recusal Judgment (d) implicit in the right to a fair hearing is the right of access to the Court for an effective remedy, which requires proceedings to be not only expeditious but also economically proportionate.
It is these strands of the fundamental right to a fair hearing which requires the Court to manage civil cases in accordance with the Overriding Objective set out in the Preamble to the Grand Court Rules (2023 Consolidation) (“GCR”). Case management will necessarily require a Court, from time to time, to form preliminary assessments as to the apparent merits of various strands of a claim or defence to ensure that each case proceeds in a manner which is “fair” in the requisite constitutional sense. Accordingly, the same “absolute” or undiluted impartiality which is required in substantively adjudicating the merits of a case cannot possibly be legally required at the case management stage. I accordingly agreed as a matter of principle that complaints of predisposition in relation to case management judicial conduct must necessarily amount to more than the recusal applicant demonstrating that an incorrect case management decision was made.
Mr Robinson KC further submitted that R1’s proper remedy was to appeal the impugned case management decisions. When I put this to Mr Todd KC in the course of argument, as regards rulings which had not been appealed, he fairly responded that (1) challenging case management decisions was difficult and (2) R1 was entitled to make the application when he made it based on the cumulative effect of various decisions and utterances that recusal was the only appropriate remedy. Having reserved judgment and reviewed the case law cited, it is clear that apparent bias complaints in relation to pre-trial matters are occasionally raised in the context of appeals against final judgments at the end of the trial. Whatever the tactical motivations for the timing of the present application may have been, it was entirely logical to raise apparent bias concerns genuinely held at the present stage. However the important point raised by the Petitioner’s counsel was that grounds for recusal and grounds for challenging the merits of case management decisions fall within entirely distinct legal categories.
The merits of the recusal complaints accordingly must be assessed by reference to the recusal test itself, focussing on whether a fair-minded and informed observer would consider that the matters relied upon created a real possibility of bias. And in viewing the complaints through the lens of the fair-minded informed observer, I was also guided by the advice provided from the Cayman Islands’ highest appellate court in Tibbetts-v-The Attorney General of the Cayman Islands [2010] UKPC 8 where Lord Clarke opined as follows: “3…The fair-minded and informed observer must adopt a balanced approach and is to be taken as a reasonable member of the public, neither unduly complacent or naïve nor unduly cynical or suspicious…”
In considering the recusal complaints below, I expressly deal with what I considered to be the most significant ‘headline’ points. It would not be proportionate to explicitly consider the many subsidiary supporting complaints and/or points which were made. The respective recusal complaints The Directions Ruling and Directions Order Page 7 of 25 FSD2024-0273 2025-07-16 FSD2024-0273 2025-07-16 8 250716 – FSD 273 OF 2024 (IKJ) International Airfinance – Recusal Judgment
The complaints about the Directions Ruling and Directions Order dated 10 October 2024 were set out in R1’s counsel’s Skeleton Argument at paragraphs 69-75. Three broad complaints were made: (a) “the Judge expressed views on the merits of the case which went beyond those which could be reasonably justified at that stage”; (b) “the Judge made comments to the effect, and determined on a provisional basis, that no trial of the Petition was required”; (c) “of the Court’s own motion, the Judge positively “encourage[d]” the Petitioner to apply for leave to amend his Petition to plead a further (and unparticularised) ground on which it might be alleged that there was deadlock and/or an irretrievable breakdown of trust and confidence between them, which the Judge went so far as formulating and drafting for the Petitioner. The Judge’s proposal was inappropriate”.
The fair-minded and informed observer would note that the Directions Ruling opened with the following judicial observations about the need for active case management by the Court. Firstly, the character of the dispute and an apparent consensus that a quick resolution would be commercially advantageous was noted: “3. This type of dispute, a falling out between business partners, typically reflects a tension between commercial logic and the emotional impulses of the human protagonists involved. This was manifest in the barbs which had been thrown in correspondence before the commencement of the present proceedings, and the contentious way in which the Summons for Directions was conducted. By common accord: (a) the alternative ‘buyout’ relief would seemingly be the only commercially rational way to resolve the proceedings assuming the threshold requirement of a case for winding up was met; and (b) it would be commercially advantageous for this dispute to be resolved as quickly as possible because of the business implications of the current deadlock.”
Next, the procedural principles supporting active case management were set out: “6. Accordingly, in considering the most significant contentious issues arising out of the Summons for Directions, and bearing in mind that the parties are agreed Page 8 of 25 FSD2024-0273 2025-07-16 FSD2024-0273 2025-07-16 9 250716 – FSD 273 OF 2024 (IKJ) International Airfinance – Recusal Judgment that expedition is desirable, I have regard to the following principles which the Court and the parties are required to seek to achieve (GCR, Preamble, paragraph 1.2): ‘(a) ensuring that the substantive law is rendered effective and that it is carried out; (b) ensuring that the normal advancement of the proceeding is facilitated rather than delayed; (c) saving expense; (d) dealing with the cause or matter in ways which are proportionate (i) to the amount of money involved; (ii) to the importance of the case; and (iii) to the complexity of the issues; (e)allotting to it an appropriate share of the Court’s resources, while taking into account the need to allot resources to other proceedings.”
Next the Directions Ruling identified (at paragraph 7) the following “most contentious” issues to be determined in relation to the Summons for Directions: “(a) whether the Petitioner needed to prove his pleaded contentious allegations of misconduct on the Respondent’s part to establish that, by reason of a deadlock, and irretrievable breakdown in trust and confidence had occurred. If a ‘full trial’ was required, this would require discovery, pleadings and potentially justify a two-stage approach with valuation being addressed in the second stage (see issue (d) below); (b) whether the proceedings should be stayed for 4 weeks to allow the parties to attempt to reach agreement on the value of the Company’s shares; (c) whether the Respondent should be permitted to reserve the right to apply to strike-out the Petition; (d) whether directions should be given for expert valuation evidence at the same time as the directions on the merits of the Petition, or after the threshold merits issue had been determined; (e) whether there should be discovery; (f) whether the Petition was wrongly placed on the public register and, if so, whether it should now be removed; and Page 9 of 25 FSD2024-0273 2025-07-16 FSD2024-0273 2025-07-16 10 250716 – FSD 273 OF 2024 (IKJ) International Airfinance – Recusal Judgment (g) whether remuneration and other benefits payable to the directors/shareholders should be excluded from the proposed Validation Order.”
Against this background, after considering the Privy Council decision of Chu-v-Lau [2020] UKPC 24, I stated: “14. As I have not been addressed on the law, the views I express are necessarily only provisional at the present stage. However, the general principles ought not to be capable of serious controversy…
My strong provisional view is that proof of the validity of the complaints the Petitioner relies on to seek a just and equitable winding-up is not an essential requirement of establishing that either a functional deadlock exists or that the relationship of trust and confidence which is essential to the proper functioning of this particular quasi-partnership has irretrievably broken down. The Respondent admitted on 7 July 2024 that there was a deadlock sufficiently serious that the quasi partners had a duty to notify the board of the Fund which the Company managed of the deadlock. He proposed a solution which the Petitioner contended was misconceived because he did not want to work with the Respondent any longer. Absent some contractual mandatory obligation to refer all disputes to arbitration or mediation, the portrait of breakdown presented by incontrovertible documentary evidence does not seem to require casting either protagonist as the villain of the piece.”
A fair-minded and informed observer would in my judgment not consider the provisional views expressed in the applicable context to reflect a predisposition on the part of the Judge to the Petitioner’s case. These views merely suggested the Petitioner did not need to pursue that part of his case which blamed R1 for the breakdown in their commercial relationship.
As for the complaint that the need for a trial was improperly and prematurely doubted, the cited provisional legal views about why the ground for a winding-up limb of the Petition appeared to be uncontroversial was grounded upon an analysis of the essentially uncontroversial facts viewed through the prism of human and judicial experience. The findings recorded were in any event expressed in qualified terms: “24. In these circumstances, I accordingly am satisfied (subject to the qualification explained below) that there is no sensible basis for a two-staged approach to deciding whether or not the Company is liable to be wound-up and, if so, what value a buyout should be based on. A ‘full trial’ of the merits of the winding-up grounds presently pleaded is not required based on my provisional findings as to the applicable law. Although it appeared to be common ground that the Respondent should be permitted to file a Defence, and I grant leave for a Defence to be filed Page 10 of 25 FSD2024-0273 2025-07-16 FSD2024-0273 2025-07-16 11 250716 – FSD 273 OF 2024 (IKJ) International Airfinance – Recusal Judgment within the period proposed by the Petitioner, bare denials will in my judgment suffice. 25.This finding is subject to the following qualification. Either party may apply by letter within 21 days of the date of delivery of the present Ruling, for a direction that a full trial on the merits of the Petitioner’s complaints is indeed legally required…”
In my judgment a fair-minded and informed observer would not view these preliminary views as indicative of predisposition towards the Petitioner’s case, even if it appeared (by some standards) to be overly enthusiastic case management. The Overriding Objective, after all, imposed a positive duty on the Court to “actively” manage the proceedings: “Court’s duty to manage proceedings 4.1 The Court must further the overriding objective by actively managing proceedings. 4.2 This may include — (a) identifying the issues at an early stage; (b) deciding promptly which issues need full investigation and trial and accordingly disposing summarily of the others; (c) encouraging the parties to co-operate with each other in the conduct of the proceedings; (d) helping the parties to settle the whole or part of the proceeding; (e) deciding the order in which issues are to be resolved; (f) fixing timetables or otherwise controlling the progress of the proceeding; (g) considering whether the likely benefits of taking a particular step will justify the cost of taking it; (h) dealing with as many aspects of the proceeding as is practicable on the same occasion; (i) dealing with the proceeding without the parties needing to attend at court; (j) conducting procedural hearings by means of telephone conference calls; (k) making appropriate use of technology; and Page 11 of 25 FSD2024-0273 2025-07-16 FSD2024-0273 2025-07-16 12 250716 – FSD 273 OF 2024 (IKJ) International Airfinance – Recusal Judgment (l) giving directions to ensure that the trial proceeds quickly and efficiently. 4.3 Whenever a proceeding comes before the Court, whether on a summons for directions or otherwise, the Court will consider making orders on its own motion for the purpose of giving effect to the overriding objectives of the rules.” [Emphasis added]
How active a judge has to be in managing proceedings will vary from case to case, the fair- minded informed observer would surely note. When parties are cooperating to advance proceedings in an efficient and expeditious manner, the judicial steer will typically be very light indeed. In any event, after R1 filed his Points of Defence and asked for the winding-up ground to be tried on 10 November 2024 when the Directions order was perfected, the very issue which I provisionally suggested might not have to be tried was ordered to be tried.
The third main complaint, that the Court was wrong to propose an amendment to the Petition to enable the winding-up ground to be summarily determined without the need for adverse findings against either party would be viewed, in the light of two case management powers expressly conferred on the Court: (a) the general provisions paragraph 4.3 of the Overriding Objective; and (b) the specific provisions of GCR Order 20 rule 8 (applied to winding-up proceedings by Order 1 rule 4 (1A) of the Companies Winding Up Rules (2023 Consolidation) (“CWR”): “(1) For the purpose of determining the real question in controversy between the parties to any proceedings, or of correcting any defect or error in any proceedings, the Court may at any stage of the proceedings and either of its own motion or on the application of any party to the proceedings order any document in the proceedings to be amended on such terms as to costs or otherwise as may be just and in such manner (if any) as it may direct.” [Emphasis added]
The fair-minded informed observer would not view my amendment proposal, which was not even framed as a positive amendment decision, as indicative of a predisposition towards the Petitioner and/or his case in light of the existence of the quoted explicit judicial case management powers. The 9 December Ruling
The 10 November 2024 Directions Order provided for a single trial (rather than a split trial) on ‘winding-up’ and ‘relief’ but set out a timetable which did not adequately take into account the post-Directions Order decision that the winding-up issue should be tried. On 4 December 2024, Page 12 of 25 FSD2024-0273 2025-07-16 FSD2024-0273 2025-07-16 13 250716 – FSD 273 OF 2024 (IKJ) International Airfinance – Recusal Judgment R1 filed a Summons for further directions. This was disposed of on the papers in the following terms by my Ruling of 9 December 2024: “16. The contested trial on the winding-up issue has indeed moved the discovery goalposts to a material extent, just not to another field altogether as the Respondent’s Summons implies. The Respondent’s contention that some modification to the voluntary discovery regime presently in place is required has merit to this extent. The Respondent should have an opportunity to apply for specific discovery in relation to issues 3 and 4 on the List of Issues appended to Ogier’s letter of 3 December 2024 to Mourant, in the event relevant documents believed to exist are not produced under the existing discovery regime. It seems clear, in general terms at least, that those issues can only fairly be determined if the Petitioner gives discovery of any relevant documents which may exist.
Accordingly, and on this basis, I would otherwise adjourn the Respondent’s Summons and decline to list it for hearing at this stage and reserve costs.”
Two other heads of relief R1’s Summons sought were summarily rejected on the grounds that they amounted to an improper attempt to undermine the 10 November 2024 Directions Order. The reasons for this decision were explained in the 9 December 2024 Ruling as follows: “10. This Summons is breath-taking for how blatantly it seeks to ride a coach and horses through the letter and spirit of the case management principles set out in the 10 October 2024 Ruling under the guise of responding to the direction as to whether or not grounds for winding-up ought not to be summarily decided in favour of the Petitioner. It is aggravated by the fact this is the second occasion on which an attempt has been made by the Respondent to invite the Court to reconsider a matter it has just decided against him. Paragraphs 34-55 of the 10 October 2024 Ruling gives reasons for rejecting the Respondent’s application for a direction that the Petition should not be placed on the public file. I was required to decide summarily a further informal confidentiality application seeking to prevent that Ruling from being publicised…
Against this background, and now accepting fairness requires the Respondent be given a chance to show that the breakdown of trust and confidence which has obviously now occurred is not ‘down to him’, the plea for a 9 day trial on this narrow issue alone deserves a place in the Guiness Book of World Records in a new category of abusive litigating. The primary rationale for rejecting a split-trial was expedition in circumstances where it was agreed that commercial damage was being caused to the Company so long as the present dispute continued. This concern is confirmed by the Respondent’s own witness, who deposes “The Petition and Mr Ghodbane’s actions have caused significant disruption to the Company” (paragraph 56), although he also avers that “the Company has been able to continue to operate” (paragraph 57). Mr Pistik squarely blames the Petitioner for turning peaceful Page 13 of 25 FSD2024-0273 2025-07-16 FSD2024-0273 2025-07-16 14 250716 – FSD 273 OF 2024 (IKJ) International Airfinance – Recusal Judgment waters into troubled ones, so the Respondent’s case on blame is clearly stronger than it initially appeared to be. However if he wishes to portray himself as a paragon of corporate virtue, the Respondent should be mindful of the apparent logical inconsistency between such a characterisation and the way in which he advances his case before the Court. If the Petitioner is the ‘scoundrel’ the Respondent implicitly contends he is, the Respondent ought logically to be embracing the shortest possible route to ending the commercial relationship. More directly relevant to case management considerations is the Respondent’s obligation to assist the Court to achieve the Overriding Objective; fair hearing rights by definition do not entitle a litigant to pursue a strategy which results in an unfair trial…
Unreasonable litigants often obscure the merits of their case. In the post-Covid- 19 era, I have observed a distinct uptick in the number of litigants who seem motivated to reducing judicial utterances to incoherent babblings of outrage. In reality, of course, such is unlikely to be the real motivation for what litigants are likely convinced is appropriate conduct. It may simply be that more litigants feel more passionately about their cases, and litigants who litigate with undue passivity may risk ending up in the unemployment line. If notions of normality have shifted in the commercial world, however, it is surely the function of the Court to adhere, so far as is reasonably possible (and comprehensible to lay litigants), to traditional standards of substantive and procedural law.”
In brief, I summarily decided not to afford R1 an oral hearing to determine points I considered it was unreasonable for him to pursue and sought to encourage him to conduct the proceedings in a manner which would enhance his prospects of success. The language used could perhaps have been expressed in more Delphic terms although, in my own judicial experience, sophistry is usually lost on the more combative litigants. This was not by any measure an “off with his head” judicial rant. The relief I considered meritorious was granted to R1. The FSD Users’ Guide is not a comprehensive code (paragraph A,1). It provides that ordinarily applications will only be decided on the papers consensually but contemplates that a different course may be appropriate in “exceptional circumstances”. The Overriding Objective expressly encourages the Court to consider “dealing with the proceeding without the parties needing to attend at court” (paragraph 4.2 (i)) and also commends “summarily disposing of” issues which do not require full investigation (paragraph 4.2 (b)).
Whether a case management decision to deny a party an oral hearing to dispose of an application is procedurally valid in the sense that it falls within or without the ambit of a trial judge’s case management discretion falls to be assessed by the party adversely affected and, if necessary, by the appellate court. The fact that this decision was not appealed meant that it was not open to R1 to reargue the issues I had summarily decided against him as appeared, to some extent, to be happening when Mr Todd KC advanced this limb of the recusal application.
The main recusal complaints may be summarised as follows: (a) “the Judge again expressed strong views as to the merits of the case”; Page 14 of 25 FSD2024-0273 2025-07-16 FSD2024-0273 2025-07-16 15 250716 – FSD 273 OF 2024 (IKJ) International Airfinance – Recusal Judgment (b) “The 9 December Ruling also contained strident – and unwarranted – criticisms of Mr Alaoui”; (c) “Lastly, in summarily rejecting Mr Alaoui’s Summons for Amended Directions on paper, the Judge declined to have a hearing of the Summons. No reasons were given by the Judge for that course…it is particularly regrettable in circumstances where the Judge made such strident criticisms of Mr Alaoui, as Mr Alaoui was thus given no opportunity to respond to them before the Judge gave his Ruling.”; (d) “Taking these matters together, a fair-minded and informed observer would conclude that there was a real possibility that the judge had not approached Mr Alaoui’s Summons for Amended Directions with the requisite impartiality and was more generally unfavourably disposed to Mr Alaoui”.
If the basis for the conclusory assertion in (d) was well-founded, this recusal complaint would probably have been made out. However, a fair-minded informed observer would note that: (a) while the Judge repeated his provisional view that the likely final outcome was that the Company would be found to be liable to be wound-up without regard to which party was at fault, he also acknowledged that “the Respondent’s case on blame is clearly stronger than it initially appeared to be”. These provisional views were, moreover, expressed in a legal context in which he noted that R1’s “collateral purpose defence is a ground for the Court refusing to exercise the discretion to grant relief (or a basis for striking-out on abuse of process grounds), not a defence to the merits of a winding-up ground”; (b) no strident criticism of Mr Alaoui personally was made. Rather, his litigation conduct was criticised in unarguably strident, but also arguably constructive, terms; (c) no express reasons for not having an oral hearing were given, but the Ruling clearly explained that the relief which was refused summarily was being refused summarily because it was considered to be abusive. The Petitioner’s request for the Summons to be struck-out entirely was rejected and it was adjourned instead.
In my judgment a fair-minded informed observer might well find fault with the case management approach reflected in the 9 December 2024 Ruling for one or more of the reasons advanced by Mr Todd KC. But such an observer would not conclude that this gave rise to a real possibility that the Judge was biased against R1. Page 15 of 25 FSD2024-0273 2025-07-16 FSD2024-0273 2025-07-16 16 250716 – FSD 273 OF 2024 (IKJ) International Airfinance – Recusal Judgment The Expert Ruling
On 11 March 2025, I gave a Ruling on the papers on the Petitioner’s Summons dated 22 January 2025 seeking directions for the exchange of expert evidence (the “Expert Ruling”). This Ruling noted that “The 1st Respondent clearly proposed a simultaneous exchange of expert reports on the same date, as opposed to sequential exchanges, and the Order made accepted this proposal” (paragraph 4). The prelude to the Petitioner’s Summons was described as follows: “6. The scheduled exchange did not take place on 18 December 2024. Correspondence exhibited to the Affidavit in support of the 22 January 2025 Summons shows that: (a) on 18 December 2024 Mourant wrote to Ogier complaining that their client’s expert report could not be finalised until the 1st Respondent provided certain documents; (b) on Friday 17 January 2025 Mourant indicated they were ready to exchange expert reports at 4.30pm that day; (c) Ogier responded the same day saying they hoped to be able to respond on Monday 20 January 2025; (d) at 8.58 am on Monday 20 January 2025, Mourant sent a short chasing email; (e) at 12.30pm on 21 January 2025, Mourant sent a longer email complaining about the delay, requesting a response by 4pm that day and indicating they were instructed to apply to the Court for an order for exchange of reports forthwith; (f) at 8pm on 21 January 2025, Ogier said they were seeking instructions and hoped to be in a position to respond the following day.
There was seemingly no response before the Petitioner’s 22 January 2025 Summons was filed. Over a month after the deadline for exchanging reports had expired, the Petitioner had justified a delay on logistical grounds (attributed to the 1st Respondent) and sought to exchange as soon his report was prepared. The 1st Respondent had raised no objections of principle to the proposed exchange nor given any indication that his report was not ready for the scheduled exchange over a month earlier.”
The Expert Ruling then explained how it came to be determined on the papers: “The Summons came to be determined on the papers in the following curious way: Page 16 of 25 FSD2024-0273 2025-07-16 FSD2024-0273 2025-07-16 17 250716 – FSD 273 OF 2024 (IKJ) International Airfinance – Recusal Judgment (a) the Petitioner requested that the Summons be dealt with on the papers. On the face of it this seemed sensible to save costs in circumstances where fixing a date for exchanging the reports ordered on the 1st Respondent’s application seemed to be a mere formality; (b) the Summons was forwarded to me on 29 January 2025. Just as I was about to inquire of counsel whether the request for a paper hearing was a joint one, Ogier advised they were seeking instructions. Ogier emailed the Court to advise: ‘We are still awaiting (and continuing to seek, with urgency) instructions from our client, and we will respond as soon as we receive instructions. In the interim, we respectfully request that the Honourable Justice Kawaley not make any decision until we have our instructions.’; (c) seven days later, the promised response was not forthcoming and on 5 February 2025 I gave the following case management directions of the Court’s own motion: ‘The Petitioner applied by Summons dated 22 January 2025 for a hearing on the papers for an Order fixing a fresh deadline for the exchange of expert evidence which was previously directed to be exchanged on 18 December 2024. It is obvious that the Court in order to ensure the integrity of its processes must now fix a fresh date for the exchange of expert reports and that the only serious question is when. As the Respondent is at risk for costs, a hearing on the papers would save costs and appear to be in his best interests. Seven days ago, the Respondent's attorneys indicated they were seeking urgent instructions and invited the Court to postpone making any Order until they could advise their clients' position. A reasonable time having elapsed for the Respondent to give instructions about the mode of disposal of the simplest of case management summons, the Judge now directs: (1) the Summons shall be determined on the papers; (2) the Respondent shall file any responsive evidence and/or short submissions within 7 days; (3) the Petitioner shall, if so advised, file any evidence or short submissions in reply within three working days thereafter.”
R1 did not object to this application being dealt with on the papers but instead by letter to the Court proposed that, contrary to the position already ordered at his own request, reports should be sequentially filed to cover the possibility that the Petitioner might rely on a different value to that in his pleaded case. I rejected this proposal on the grounds that, inter alia: Page 17 of 25 FSD2024-0273 2025-07-16 FSD2024-0273 2025-07-16 18 250716 – FSD 273 OF 2024 (IKJ) International Airfinance – Recusal Judgment (a) “the speculation that the Petitioner may seek to rely on a value different to that which he has previously asserted is mere speculation, and can be dealt with appropriately if the need arises” (paragraph 11 (b)); (b) “the only obvious consequence of sequential filing is to add further delay to the original timetable for no clearly defined corresponding procedural benefit” (paragraph 11 (c)); (c) “the 1st Respondent offers no explanation, let alone apology, for his own unexplained delay in instructing his attorneys to deal with the issue of exchanging reports in an appropriately prompt manner over the 4 weeks since the Petitioner indicated he was ready for an exchange of reports” (paragraph 11 (d)); (d) “this is not the first, or even second occasion on which the 1st Respondent has sought to undermine an Order of the Court. The approach adopted here may be more passive than aggressive, but it clearly demonstrates a clear indifference to the need to conform to accepted standards of litigation conduct. This is also surprising because it is wholly at odds with the merits of the 1st Respondent’s case that, contrary to my provisional view that a prima facie case for winding up was disclosed on the documents, a full trial of the case for winding-up is required. If this issue was being seriously contested, the 1st Respondent ought logically to have been attempting to burnish (rather than burn) his credentials as the consummate ‘reasonable man…” (paragraph 11 (e)); and (e) the standard direction for the exchange of expert reports under the FSD User’s Guide was simultaneous rather than sequential (paragraph B 5.5).
The following main grounds for recusal were said to arise from this case management decision: (a) “The concern expressed by Mr Alaoui that the Petitioner may be seeking to amend its case through its expert report and the proposal made in his written submissions were (at the least) reasonable and did not warrant such censure by the Judge”; (b) “The Judge also implied that in taking the approach he had done to the Expert Summons, Mr Alaoui was ‘burn[ing]’ his credentials as the ‘consummate ‘reasonable man’’ in circumstances where if the issue as to whether the Company should be wound up ‘was being seriously contested, [he] ought logically to have been attempting to burnish’ those credentials (§11(e)). That statement was particularly problematic. It Page 18 of 25 FSD2024-0273 2025-07-16 FSD2024-0273 2025-07-16 19 250716 – FSD 273 OF 2024 (IKJ) International Airfinance – Recusal Judgment suggested that the Judge was linking his criticisms of Mr Alaoui’s approach to the procedural matters in the proceedings to the substantial question on the Petition as to whether the Company should be wound up…”
Based on what is now known about the Petitioner’s change in his pleaded case, it is still far from clear that R1’s request for sequential reports was more reasonable than it appeared to be before the Expert Ruling was delivered. It might be said that R1 only consented to simultaneous exchange because he was initially confident in placing reliance on the Petitioner’s pleaded case on value. However even at the recusal hearing, no coherent basis for ordering sequential reports by reason only of R1 being unclear what value the Petitioner was contended for was advanced. The principled basis rejecting sequential reports was explained in the Expert Ruling as follows: “16. The norm (according to the FSD Guide) is the simultaneous exchange of reports, but sequential reports can be ordered for good cause, following a proper hearing to explore the issue, the FSD Guide suggests. Here, the case management hearing took place on 17 September and the 1st Respondent proposed the usual rather than the exceptional course. I agreed and made an Order accordingly. No material change of circumstances has occurred since. All that has happened is that the 1st Respondent has sought to undermine provisions of an Order he asked the Court to make. It is not seriously arguable that expert valuation evidence falls into a category of case where it is recognised that sequential service would be helpful.
Even in the case of fair value proceedings under section 238 of the Companies Act (2023 Revision), where the dissenter bears the burden of proving a value higher than the fair value offer made by the company, mutual exchange is the norm. The implicit assumption in that arena appears to be that valuing a company is a ‘neutral’ exercise, to be distinguished from forensic evidence in relation to wrongdoing, foreign law evidence in support of a legal claim or cases where the issues to be addressed by the respective experts are unclear.”
Viewed in the round, in my judgment the fair-minded informed observer would not think that my criticisms of R1’s conduct in relation to the exchange of expert evidence (i.e. without good cause seeking to modify a standard direction) were so obviously unjustified as to create the appearance of a real possibility of bias against him.
As far as the linkage of my criticism of R1’s litigation conduct to the merits of his case are concerned, the linkage was in this legal context unavoidable. As I observed in the course of argument, where the conduct of the protagonists is in controversy in the proceedings, the standard modus operandi is that conduct of the litigation (in a general sense) mirrors the standards of conduct which each side contends they manifested in the relevant business context. The Petitioner alleges that R1 is impossible to work with and a deadlock is the result. R1 says, in effect, that the Petition has been presented for a collateral purpose and the allegations that he Page 19 of 25 FSD2024-0273 2025-07-16 FSD2024-0273 2025-07-16 20 250716 – FSD 273 OF 2024 (IKJ) International Airfinance – Recusal Judgment cannot be worked with are false. How a civil litigant conducts their litigation is always potentially relevant to an appraisal of how they conduct their business or other affairs. Of course it will never be dispositive. Few litigants deliberately undermine their cases by alienating the Court. More often than not, litigants perceived by the Court as acting unreasonably are so convinced by their own assessment of how best to conduct their case that they steadfastly follow their own natural instincts and ‘fob off’ cautionary advice from their lawyers. In other cases, there may be tactical motivations for a strategy of delay which privilege the undisclosed benefits of delay over ‘currying favour’ with the Court. In general terms, however, avoiding alienating the trier of fact is ‘rule 1.01’ of civil litigation. And so when one combines a liberal dose of common sense with even minimal legal experience, it seems entirely counterintuitive to accuse a judge who openly warns a litigant that he is potentially damaging his own case of displaying hostility to that litigant.
For these reasons I find that a fair-minded and informed observer would not regard the criticisms of R1 which are found in the Expert Ruling to give rise to a real possibility that I was biased against him. The 9 April Ruling, the 15 April Decision and the Listing Ruling
In R1’s Skeleton, it was submitted: “96. By emails dated 24 and 25 April 2025 and, the Judge: a. listed the hearing of the Amendment Summons for 1 May 2025, despite being aware that both Mr Alaoui’s Leading Counsel and the Partner in charge of the matter at Ogier were not available on that date; b. listed the hearing of the Amendment Summons despite being informed of Mr Alaoui’s intention to apply to seek leave to appeal the Judge’s decision of 11 and 15 April and a stay of proceedings; and c. once again, offered provisional views as to the merits of the anticipated summons indicating, prior to hearing the parties on the matter, that certain proposed amendments to the Petition contained in the Amendment Summons appeared ‘uncontroversial, compatible with the existing trial timetable and potentially amenable to summary determination’. These remarks were inappropriate and formed part of a discernible and consistent pattern of conduct on the part of the Judge, as already established above, whereby strong provisional views and summary findings were repeatedly expressed in favour of the Petitioner.
As a result of the Judge’s listing decisions, Mr Alaoui was not represented by a Partner of Ogier nor Leading Counsel at the 1 May 2025 Hearing. During the hearing, the Judge again made strident and unwarranted criticisms of Mr Alaoui, each implying that his conduct was extraordinary and designed to obstruct the course of proceedings: Page 20 of 25 FSD2024-0273 2025-07-16 FSD2024-0273 2025-07-16 21 250716 – FSD 273 OF 2024 (IKJ) International Airfinance – Recusal Judgment a. the Judge wrongly implied that Mr Alaoui’s conduct was intended to stall the proceedings by stating that Mr Alaoui’s conduct was ‘manifestly designed to put off the evil day when this petition is substantively heard’, and suggested that ‘The challenge in this case is that one humors a respondent who seems to wish at every turn to obstruct rather than assist the normal advancement of proceedings’ A fair- minded observer would regard these criticisms as unjustified. To the contrary, Mr Alaoui’s conduct has been simply to ensure that he be properly represented at, and be afforded adequate opportunity to prepare for, each hearing or filing opportunity as is his right under the Constitution. b. the Judge exclaimed ‘…it is very difficult to deal with a client who gives instructions that are inconsistent with the litigant’s duties to assist the court or advance the overriding objective…’ and described Mr Alaoui as engaging in ‘bizarre litigant conduct’. Again, no criticism of Mr Alaoui was warranted, and certainly no criticism in those strident terms. Mr Alaoui’s conduct, in seeking to see that his basic right to a fair trial be upheld, was neither ‘bizarre’ nor ‘inconsistent with’ any duty owed by him to the Court, nor the overriding objective…
Finally, the fair minded and reasonable observer, aware of the Judge’s impending retirement might reasonably conclude that the Judge’s undue insistence on the most expeditious course at each stage of the proceedings – including the refusal of the Summons for Amended Directions and, in particular, the decision to list the Petition for trial in July 2025 notwithstanding the difficulties to which that gave rise in listing the Amendment Summons – was influenced, at least in part, by a desire to ensure that the Petition could be concluded prior to his retirement on 19 August 2025.”
At first blush, these submissions more resemble an attack on the validity of the two listing decisions mentioned, (1) the urgent listing of the Petitioner’s 31 March Summons seeking leave to amend the Petition (the “Amendment Summons”) and (2) the decision to list the Petition for trial for the period 28 July-1 August 2025 for the reasons set out in the 15 May 2025 judgment (the “Listing Ruling”). The relevant listing decisions are the subject of a Summons dated 3 June 2025 seeking leave to appeal against them and a stay of the present proceedings pending appeal which application was granted on 9 July 2025.
Those decisions came to be made in the following circumstances: (a) in late March 2025, the parties provided dates to avoid for a five day trial and the last week of July was convenient to both sides; (b) on 31 March 2025, the Petitioner filed the Amendment Summons; (c) on 9 April 2025, I listed the Petition (mistakenly) for only three days in the last week of July in order that “the Petitioner's Summons for leave to amend the Petition should be considered within that procedural framework”; Page 21 of 25 FSD2024-0273 2025-07-16 FSD2024-0273 2025-07-16 22 250716 – FSD 273 OF 2024 (IKJ) International Airfinance – Recusal Judgment (d) on 11 April 2025, R1’s attorneys requested the Court to reconsider that listing and proposed directions for the Amendment Summons which seemed likely to make the proposed trial dates inappropriate. Reasons were requested for any decision to maintain the trial date as instructions had been received to appeal any such decision; (e) on 15 April 2025 I indicated that I rejected “Ogier's request to give directions relating to the Amendment Application which have the result the Petition cannot be tried in late July. Unless the Respondent's dates to avoid in April are provided by close of business on 14 April 2025, the Amendment Application will be listed by reference to Mourant's dates to avoid”; (f) on 16 April 2025 R1’s attorneys responded stating that their legal team had no availability in April and proposing dates, based on Leading Counsel’s availability, in mid-May and mid-June for the hearing of the Amendment Summons; (g) on 24 April 2025, I directed that the Amendment Summons be listed for hearing on 1 May 2025 without regard to the non-availability of R1’s legal team; and (h) on 1 May 2025, I granted leave to amend the Petition after refusing R1’s application for an adjournment although the perfected Order is dated 12 May 2025; and (i) on 15 May 2025 the Reasons for the listing decisions (circulated in draft to counsel on 17 April 2025) were finalised. (The reasons for the delay are unclear).
As regards the listing of the Petition, the Listing Ruling explained the decision most pertinently as follows: “12. I appreciate that it might be said that, taking a high level view, there was no need for expedition in listing a cause which was only commenced in 2024. However what is unreasonable delay and what amounts to a wasting of costs should, in my judgment, always be determined having regard to the particularities of each case. [The history of the proceedings was then set out, including past judicial criticisms of R1’s litigation approach]
It was against this background, three judicially recorded attempts by the 1st Respondent to undermine this Court’s Orders in the present proceedings, that I approached the issue of finally responding to a listing request made by the Petitioner in December 2024 in early April 2025.
By email dated 13 March 2025, Mourant requested a five-day hearing of the Petition before the end of July 2025 when the Trinity Term ends and set out their dates to avoid. By an email dated 20 March 2025, Mourant requested the Court to Page 22 of 25 FSD2024-0273 2025-07-16 FSD2024-0273 2025-07-16 23 250716 – FSD 273 OF 2024 (IKJ) International Airfinance – Recusal Judgment proceed with listing, indicating that Ogier were still seeking instructions from their client. Mourant also foreshadowed an application to strike-out the 1st Respondent’s Defence. On 21 March 2025 Ogier responded that they were still taking instructions on trial dates but considered that the threatened strike-out application of which no notice had been given was unsatisfactory. In addition complaint was made that if the additionally foreshadowed application to amend the Petition succeeded, it would affect listing because of the potential need for additional discovery.
On 24 March 2025 I indicated that any strike-out Summons by the Petitioner at this juncture would be liable to be summarily struck-out and declined to unilaterally list the Petition without regard to the 1st Respondent’s convenient dates. Ogier thereafter on 28 March 2025 provided their dates to avoid and the last week of July was convenient to both parties….
In these circumstances, I considered the most sensible case management approach was to…list the trial for the earliest possible date convenient to the parties…” [Emphasis added]
The Petition was listed for dates the Court considered were convenient to both parties against a background of R1 having been found on more than one occasion to have been obstructing the Court’s management objectives. The listing request from the Petitioner had been outstanding since December 2024 and was acceded to in April. The Petitioner seemingly attempted to exploit the Court’s presumed ire about R1’s delay in providing dates by threatening to file an application to strike-out the Defence, but I indicated that any such application would itself be summarily struck-out. It was only during the hearing of the present recusal application and leave to appeal application, that I realised that the five day listing directed on 24 April 2025 in fact concluded on 1 August 2025, so the last day was outside the period signified as convenient by Ogier in late March-a minor glitch in the scheme of things.
The Listing Ruling also explains why it was decided to list the Amendment Summons without reference to the convenience of R1’s legal team. As the Listing Ruling recorded: “27. I declined to accommodate the 1st Respondent’s request for an elongated timetable for dealing with the Amendment Summons because this could only be construed as a collateral attack on my listing decision in relation to the Petition.”
That adverse inference was drawn in circumstances where R1 appeared reluctant to provide potential trial dates, had previously resisted the Court’s efforts to manage the proceedings and as soon as a trial date was set seemingly seized on the Amendment Summons as an excuse to displace the trial listing. Only two days after the 9 April 2025 decision to list the Petition, lawyers who on previous occasions had taken weeks to obtain seemingly routine instructions already had instructions to appeal the listing decision if it was not withdrawn. This litigation history prompted me to observe at the 1 May 2025 hearing of the Amendment Summons when Page 23 of 25 FSD2024-0273 2025-07-16 FSD2024-0273 2025-07-16 24 250716 – FSD 273 OF 2024 (IKJ) International Airfinance – Recusal Judgment an adjournment was sought, that it appeared that R1 was seeking to put off “the evil day” when the Petition would be tried.
In my judgment a fair-minded and informed observer looking at these impugned listing decisions in the round might well consider that (1) the Court had applied excessive case management zeal, (2) that the Judge’s criticisms of what he viewed as litigation misconduct were expressed in overly strident terms, and (3) that the Judge’s enthusiasm for a late July trial date was unduly influenced by his 19 August 2025 retirement date. However that same observer would not conclude that there was, in the objectively viewed circumstances, a real possibility that the Judge was predisposed against R1 personally or against his case on the merits. Summary of findings
The recusal application was dismissed because, doing my best to objectively apply the governing principles to criticism of my own conduct of the present proceedings, I was satisfied that a fair-minded and informed observer evaluating the matters complained of individually or collectively would not consider there was a real possibility of bias. The following considerations informed my analysis: (a) where there is no actual or potentially disqualifying relationship between a judge and one of the parties, the need for a precautionary approach does not usually arise; (b) active case management is central to the modern judicial function in civil litigation. Save in cases where both parties are able and willing to cooperate in advancing the litigation in an efficient manner (which in my view is the best of all possible case management worlds), judges are obliged to make case management decisions which will inevitably be adverse to a party whose view of how the case should progress is different to that of the judge; (c) civil litigants are obliged to assist the Court to achieve the Overriding Objective and under CWR Order 24 rule 7, “costs” means “the reasonable legal fees and expenses incurred by a person in conducting or participating in a liquidation proceeding in an economical, expeditious and proper manner”. Judges must be entitled to criticise litigants for failing to comply with these procedural obligations both generally and for the purposes of enforcing the “discipline” of the costs rules; (d) an appearance of bias arising from case management decisions and or judicial observations will generally require more than demonstrating that the judge has become irritated with a litigant or has articulated a provisional view on the merits which might at trial be shown to be wrong. If the recusal threshold was as low as this, judges would be unable to confidently make case management decisions at all; (e) Mr Robinson KC helpfully referred the Court to paragraph 23 of Doyle J’s Judgment in the Arnage case where he cited various illustrative judicial statements on the practical application of the recusal principles. Most significantly: Page 24 of 25 FSD2024-0273 2025-07-16 FSD2024-0273 2025-07-16 25 250716 – FSD 273 OF 2024 (IKJ) International Airfinance – Recusal Judgment “…There can be no doubt that the judge’s remarks at the case management conference and during the trial were forthright and robust and it would have been better had he expressed himself in a more moderate manner. But they must be considered in context. Some of them were made in the course of interchanges with counsel in which the judge was seeking to make clear the aspects of the claim which, as a matter of principle, he found difficulty accepting; others were made so that counsel understood his preliminary views on particular issues… fair minded observer, who heard these remarks in the context in which they were made, would not conclude that the judge had set his mind against the Liquidators or had predetermined the case against them” (Lord Kitchin at paragraph 16 of Byers-v-Chen Ningning [2021] UKPC 4); and (f) Mr Todd KC contended that the Byers conclusions were inapplicable because the judicial observations were made at a hearing at which counsel was able to immediate reply. I rejected that contention. In my judgment criticisms made in written case management rulings, which can be responded to before or at trial, fell to be evaluated in the same manner as Lord Kitchin indicated in Byers.
In rejecting the recusal application and provisionally awarding the Petitioner his costs to be taxed if not agreed on the standard basis, my view was that although the motivations for the application could potentially be viewed in cynical terms: (a) the application was advanced by R1’s counsel in a proportionate and reasonable manner; and (b) there was from Mr Allaoui’s lay perspective an understandable basis for making it. Summary
For the above reasons, on 4 July 2025, I dismissed R1’s recusal Summons. ________________________________________________ THE HONOURABLE MR JUSTICE IAN RC KAWALEY JUDGE OF THE GRAND COURT Page 25 of 25 FSD2024-0273 2025-07-16 FSD2024-0273 2025-07-16