Michael Wilson & Partners Limited v. CJSC KazSubton and Kazphosphate LLP

At a glance

Parties

Michael Wilson & Partners Limited (judgment creditor) v. CJSC KazSubton and Kazphosphate LLP (judgment debtors); Solvay Solutions UK Limited (third party)

Case no.

Claim No. QB-2003-000001 (formerly HQ03X03979); [2020] EWHC 2957 (QB)

Court

High Court of Justice, Queen's Bench Division (Master Yoxall)

Forum and rules

English court enforcement proceedings: third party debt orders under CPR Part 71

Sector

Phosphate supply (yellow phosphorus); judgment enforcement

Outcome

The judgment creditor's application to set aside the order of 26 March 2020 and reinstate its recusal application was dismissed as totally without merit (12 November 2020).

Amount

Earlier orders described in the judgment: costs of £18,141.94 (2 August 2013) and £55,000 on account of indemnity costs (2 October 2019), both payable by the claimant to Solvay.

The dispute

Michael Wilson & Partners Limited (MWP) obtained judgments in 2004 against CJSC KazSubton and Kazphosphate LLP. It then tried to enforce them in England through third party debt orders against Solvay Solutions UK Limited (formerly Rhodia UK Limited), a buyer of phosphate from Kazphosphate. Master Yoxall set aside a 2013 interim third party debt order against Solvay. The main reason was a real risk that Solvay would have to pay twice: its supply contract was governed by Dutch law and contained an arbitration clause under the New York Convention, and the 2004 judgment might not be recognised in the Netherlands. MWP's later applications failed: to set aside that 2013 order, to admit new evidence, and to join Kazphosphate Limited. MWP then applied for the Master to recuse himself for apparent or actual bias. It relied on his earlier rulings against it, his language, his conduct of hearings, the costs orders, and the reversal by the Court of Appeal of a stay he had granted in the separate case Michael Wilson & Partners Ltd v Sinclair. Solvay opposed the application.

Key holdings

1. The test is whether a fair-minded and informed observer, considering all the circumstances, would conclude that there was a real possibility of bias (Porter v Magill). The mere fact that a judge has decided applications against a party is not enough. ¶ 14
2. The Court of Appeal's reversal of the Master's stay in the Sinclair case could not have caused embarrassment, resentment or bias. The issues there were far from straightforward, and the appeal judges expressed doubt about them. A previous ruling in an unrelated case does not show a real possibility of bias. The Master's remark about not agreeing with Flaux J "for the hell of it" shows no antagonism towards appeal judges. ¶¶ 26–34
3. No apparent bias arose from the following rulings: the 2 August 2013 order setting aside the interim third party debt order (permission to appeal was refused by Jay J); the 17 December 2018 refusal to join Kazphosphate Limited; and the description of that application as "hopeless" and "a recipe for a mess". A judge may use blunt language where appropriate. ¶¶ 36–45
4. The refusal to admit new evidence and the 2 October 2019 dismissal of the set-aside application show no bias. Bare assertions of fraud did not justify directing a trial, and MWP's remedy for a wrong decision is an appeal. The order for £55,000 on account of costs reflected the way MWP had conducted the applications; any excess can be corrected on detailed assessment. ¶¶ 47–52
5. The Master's conduct of the hearings of 13 January 2020 and 26 March 2020 might show judicial frustration but not bias. The Master was alive to the problems caused by the Covid-19 pandemic, and he had offered to adjourn if counsel confirmed that he could not attend by telephone. ¶¶ 53–56
6. The application to set aside the 26 March 2020 order was dismissed as totally without merit, so the recusal application remains dismissed. ¶ 57
7. In the annexed judgment of 2 October 2019, the 2 August 2013 order stands. The application to vary it came five years late without explanation. An order setting aside a third party debt order is final in nature, and the new evidence did not justify setting it aside or varying it. Annex 2, ¶¶ 17–30

Procedural history

1. 4 August 2004Judgment against Kazphosphate LLP (order of Master Leslie); judgment against the First Defendant had been given in May 2004.
2. 12 July 2013Interim third party debt order made against Solvay (then Rhodia UK Limited).
3. 2 August 2013Interim order set aside because of the risk that Solvay would pay twice; MWP ordered to pay costs of £18,141.94. Jay J refused permission to appeal on 7 November 2013.
4. 11 May 2018Fresh interim third party debt order obtained against Solvay.
5. 17 December 2018Application to join Kazphosphate Limited to the claim and to the 2018 interim order dismissed.
6. 7 May 2019Interim third party debt order granted against Kazphosphate Limited.
7. 2 October 2019Judgment dismissing MWP's application to set aside the 2013 order and its application to adduce further evidence, with indemnity costs. MWP issued its recusal application the same day.
8. 26 March 2020Application to adjourn refused and recusal application dismissed at a telephone hearing, with liberty to apply to set the order aside.
9. 18 August 2020Hearing by Skype of MWP's application to set aside the 26 March 2020 order.
10. 12 November 2020Judgment dismissing the application as totally without merit.

Tribunal, counsel and experts

Decided by

• Master Yoxall Judge, High Court of Justice, Queen's Bench Division

For the claimant

Michael Wilson & Partners Ltd

For other participants

Addleshaw Goddard

Experts

Joachim Staub (other)

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Keywords

• recusal
• apparent bias
• fair-minded and informed observer
• Porter v Magill
• third party debt order
• enforcement of judgments
• Kazphosphate
• Solvay
• Rhodia
• yellow phosphorus
• risk of double payment
• New York Convention
• Dutch law
• CPR r.3.1(7)
• set aside or vary order
• indemnity costs
• Michael Wilson & Partners v Sinclair
• Covid-19 remote hearing

Summary generated with AI from the published documents — refer to the award for the authoritative text.