Teare J refuses to recuse himself from Ablyazov case

By Katy Dowell

Addleshaw Goddard has failed in its bid to have Mr Justice Teare recuse himself from a $6bn dispute between Kazakh billionaire Mukhtar Ablyazov and JSC BTA Bank.


Addleshaws made a last-minute application for Teare J to recuse himself last Thursday (25 October 2012), arguing that it could appear that the judge was biased against its client, Ablyazov.


In the three-year run up to the three-month trial Teare J has delivered 26 judgments in the ongoing dispute.


Duncan Matthews QC of 20 Essex Street, instructed by Addleshaws partners Richard Leedham and Ian Hargreaves for Ablyazov, contended that as Tear J had found Ablyazov guilty of being in contempt of court in February (16 Febuary 2012), it could appear that the judge was biased against him.


Matthews contended that the requirement that there should be no appearance of bias is one aspect both of the common law requirement that there should be a fair trial and of Ablyazov’s right under article 6 of the ECHR to a fair trial and, in particular, to a trial by an impartial tribunal.


Stephen Smith QC, instructed by Hogan Lovells partner Chris Hardman for BTA Bank, countered that for Teare J to stand down from the case Ablyazov must believe there was a bias against him.


Furthermore, Smith said, applications for recusal could be dismissed on the grounds that it could cause delay.


Refusing the application, Teare J said there had been many opportunities for Ablyazov to lodge a recusal application since February but he had failed to do so, waiting until just weeks before the main trail was due to begin.


“By not seeking an order that I recuse myself at the pre-trial review on 2 October 2012 Mr Ablyazov represented that he had no objection to my trying the case,” the judge said in his ruling.


“By that time he had had full knowledge of my findings on the contempt application since February 2012. If ever there was a time when he would be expected to give notice of an application that I should recuse myself from the trial if that were his intention then the pre-trial review was it.”


The delay, he said, was problematic adding: “I’m not persuaded that the fair-minded observer would conclude that there’s a real possibility that I would be biased.”


The trial, which involves more than 50 lawyers, is due to begin on Tuesday but the parties are still awaiting the outcome of Ablyazov’s appeal against the committal order. Sources close to the case said that decision was anticipated early next week.


Should the appeal fail, Hogan Lovells will succeed in having the defendant debarred (28 May 2012) from the case and judgment entered against him.


Ablyazov has repeatedly denied allegations that he absconded from Kazakhstan having embezzled funds out of its BTA Bank, which he chaired until being ousted in 2009 (6 February 2012). He claims he was a victim of political persecution and was ousted from BTA because the Kazakh government wanted to nationalise the bank.


Initially, BTA’s claims levelled at Ablyazov alleged the misappropriation of funds totalling $2bn. This figure has since ballooned to around $6bn.


The legal line-up


For the claimant JSC BTA Bank: New Square Chambers’ Stephen Smith QC, New Square Chambers’ Tim Akkouh and Emily Gillett of the same set instructed by Hogan Lovells partner Chris Hardman.


For the defendant Ablyazov: 20 Essex Street’s Duncan Matthews QC, Maitland Chambers’ George Hayman and James Sheehan of the same set instructed by Addleshaw Goddard partners Richard Leedham and Ian Hargreaves.


For the defendant Khazhaev: Fountain Court’s Jeffrey Chapman QC instructed by Olswang partner Steve Corney and senior associate Anna Caddick.


The Lawyer