Claim No: ARB 003/2015
THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
In the name of His Highness Sheikh Mohammad Bin Rashid Al Maktoum, Ruler of Dubai
IN THE COURT OF FIRST INSTANCE
BEFORE JUSTICE SIR DAVID STEEL
WCT BERHAD (DUBAI BRANCH)
MEYDAN GROUP LLC
Hearing: 3 February 2016
Counsel: Michael Grose of Clyde & Co LLP for the Claimant
Tim Taylor QC of King and Wood Mallesons (MENA) LLP for the Defendant
Judgment: 3 February 2016
DECISION OF JUSTICE SIR DAVID STEEL
Transcribed from the oral decision handed down on 3 February 2016, revised and approved by the Judge.
Justice Sir David Steel:
1. The Court is concerned with an application taken out by the Defendant, Meydan Group, in which they seek an order that some judge other than myself be assigned to the hearing of the substantive application which is scheduled for 7 and 8 February, i.e. next week.
2. The grounds of that application are twofold, that, because I was a party to the decision of the Court of Appeal in CA-005-2014 Meydan Group LLC v Banyan Tree Corporate Pte Ltd and the Defendant proposes to argue that that decision was obviously wrong or not binding and secondly because of the content of the transcript of the hearing before the Court of Appeal in Meydan v Banyan, there would appear to a fair minded observer to be a real possibility or danger of bias.
3. In fact, although I am giving a short judgment, the outcome is in a sense moot because unfortunately I cannot actually any longer sit at the dates scheduled for the hearing because I have to be back in London on the Sunday and Monday and, although I could return to the jurisdiction in time for a hearing on Tuesday, I would have to leave again Wednesday afternoon and I think it is common ground between the parties that a day and a half is really too short for disposal of the substantive application. .
4. Let me briefly start with a reference to the content of the transcript of the hearing in front of the Court of Appeal, which variously constitutes the primary contention or secondary contention depending on which document one looks at. The focus of the complaint is on some exchanges between Counsel for Meydan and myself over three pages towards the end of the transcript which covers well over 150 pages. The catalyst for the exchanges was the observation by Counsel for the Defendant which queried whether the Meydan Group should be put to the expense, as he put it, of resisting a money judgment.
5. My responsive observation in the course of argument was that the Defendant did not appear to be reluctant to expose itself to very substantial legal costs since, as set out in the judgment, there had been a whole series of proceedings that had been instituted in regard to the arbitration award that had been handed down what is now many years ago. These included a claim against the directors or committee of DIAC seeking damages for some AED 15 million. Proceedings against the arbitrator himself claiming AED 7 million. And finally a claim by Meydan against Banyan for AED 782 million, the make-up of which was not at least apparent.
6. One makes the introductory observation that a challenge to, and indeed criticism of, a submission by counsel is not evidence of bias. Any fair minded person, in my judgment, would regard my observation that the suggestion the Defendant was nervous about expending money or were concerned to avoid incurring legal costs was indeed absurd. That observation was entirely legitimate and proportionate. It did not begin to demonstrate some antagonism towards the Defendant.
7. Equally such an observer would regard my question as to whether there was, in the light of the history of this case, a possibility that proceedings against this Court would be brought in the event of failure was scarcely surprising. The straightforward answer would have been “of course not”, but that would have stood uneasily with the proceedings against DIAC and the arbitrator himself.
8. In any event more emphasis is put on a later observation that I approached the Defendant’s case with a long spoon. A fair minded person would agree against the background of all the material before the Court that it was entirely legitimate for the Court to take the stance that it should approach the Respondent’s argument and evidence at arm’s length and with some caution. Perhaps another phrase for it would be ‘at a distance’. The phrase I used was a long spoon. If that created a sense of unease amongst the representatives of Meydan, it was certainly not intended in any other way than, as I put it, an arm’s length distance and I do not really seriously believe it could be perceived in any other sense or context.
9. So I would be minded, if this matter was still alive, to reject the application on that ground. The other point is my association with the decision of the Court of Appeal in Banyan. Indeed, I was, if it is the right expression, the chairman of the panel. I sat with Justice Roger Giles and H.E. Justice Ali Al Madhani.
10. In the course of argument before me today, I have teased out how far the complaint of association with Banyan goes. What, as I understand it, is said is that the argument in the present case does involve a challenge to the decision in Banyan on the basis it was wrong or even obviously wrong. The way in which that is deployed, as I understand the submissions today, is by way of reinforcement to the complaint about the exchanges during the course of the hearing rather than as some independent basis for asserting the possibility of bias. I am relieved to hear that because logically it would apply to any other judge who was a party to the decision, such as H.E. Justice Ali Al Madhani and Justice Roger Giles and indeed it may be to other judges who have relied upon Banyan uncritically despite the fact it is asserted to be obviously wrong.
11. I would observe that, if and to the extent any allegation of potential bias is based upon some association with an earlier decision, that is a proposition that calls for a very high standard of proof, because otherwise it will occasion serious administrative problems for any court. There are a whole range of decisions in which the proposition that participation in a decision on the same issue as arose in an earlier hearing gives rise to issue bias has been rejected. They are mainly decisions in the arbitration field, and in particular the ICSID arbitration field. Notably no decision has been put before me in the present proceedings which would begin to justify a challenge on the grounds of participation in a decision whether or not it happened to be adverse to the Defendant. The reality is that it is common place for judges to be invited to differ from earlier decisions of their own. It is a process which involves, at least in my judgment, little by way of intellectual difficulty. I cannot help quoting, I hope accurately, from Ralph Waldo Emerson that “consistency is the hobgoblin of small minds”.
12. But in any event, in the present case, there is the further difficulty that the issue which is being raised can only be determined by the Court of Appeal. Any first instance judge is likely to regard himself as bound by Banyan or, if he were to conclude that it was obviously wrong and therefore he was not bound by it, then inevitably the other side will appeal. So there is in a sense no real difficulty occasioned by any participation in the earlier Court of Appeal decision. This is a small Court which has the burden of establishing a Court of Appeal from its own justices in association with the Chief Justice. Therefore it is important, I should say, in terms that I would not be minded to accept, save on an extreme basis, that those participating in one decision are somehow precluded from participating in another case.
13. Anyway, for what it is worth, and it is really not worth very much, I would have concluded that it was not appropriate to recuse myself but, as I indicated, that proposition is really no longer of the slightest significance because I will not be hearing it.
Date of Issue: 8 February 2016
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