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From: David Cavender
To:
Subject: RE: recusal [WBDUK-AC.FID26896945]
Date: Wed, 20 Mar 2019 10:10:30 +0000
Importance: Normal
Inline-Images: image001 jpg; image002.png; image003.png; image004.png
Indeed !
David Cavender Q.C.
One Essex Court
Temple
London EC4Y 9AR
ONE ESSEX COURT
O
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From: Tom Beezer [mailtoi
Sent: 20 March 201!
To: David Cavender
Subject: RE: recusal
David
I agree
One Q...a missing "not" ? see suggested addition in red below.
t
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Tom Beezer
Partner
Womble Bond Dickinson (UK) LLP.
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From: David Cavender [mailto:
Sent: 20 March 2019 10:07
To: Andrew Parsons; Tom Beezer; Gideon Cohen; Stephanie Wood
Cc: Amy Prime
Subject: RE: recusal
Dear Tom,
This proposal does not work. Indeed, if made, this application would make matters (even worse). Even if PO decide
not to seek to recuse Fraser J I would advise strongly against the proposed course. I say this for the following
reasons:
The immediate (and likely irreversible) prejudice PO are suffering is the effects of the apparent bias Fraser J
showed in the CIT upon his current handling of the Horizon issues trial. There is also the future prejudice of him
handling the breach trial in November 2019.
The only way of seeking to deal with the prejudice is to seek his recusal on an urgent basis.
Seeking to appear before him indicating that PO is going to appeal against his CIT judgment on grounds of
procedural unfairness — will assuredly not result in him adjourning the Horizon trial. He will not do so because the
unfairness in the CIT trial itself does not infect the Horizon trial. It is the apparent bias of Fraser J that infects the
Horizon trial. The only remedy for that is recusal.
If, on this proposal, Fraser J’s refusal to adjourn the Horizon trial is then appealed to the Court of Appeal — they
would assuredly not adjourn that trial and would not recuse him- because there would not application before
them to do so.
Furthermore, an appeal against a refusal to recuse is much more likely to come on as an urgent appeal — than an
appeal against the refusal of a judge to adjourn a trial on the basis that he showed procedural unfairness in an
earlier trial between the same parties. Indeed the latter appeal is very likely to come on after the Horizon trial is
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completed and the Judgment handed down. This fact would make it more unlikely the Court of Appeal would
intervene.
And, if all this comes to pass (as it most assuredly would) is the proposal that then PO applies to the judge to
recuse himself ? And then appeal him if he does not ? This make no sense- and would all come too late to be
effective to deal with the prejudice in (1). Indeed, this course of action would look very much as if PO were
seeking to delay matters and behave badly- in the manner presently charged by the Judge.
If there are good grounds for a recusal (and clearly there are) and good prospects of success (as advised) then the
Court of Appeal would expect PO to apply to the Judge to recuse himself and then appeal him if he did not. There
is no middle ground here.
Best,
D.
David Cavender Q.C.
One Essex Court
Temple
London EC4Y 9AR
ONE ESSEX COURT
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From: Andrew Parsons [mailt
Sent: 20 March 2019 07:58
Gideon Cohe:
; Stephanie Wood ; GRO
David Cavender
Subject: RE: recusal
Point 2 is logically wrong. The procedural unfairness for trial 1 does not automatically infect trial 2 with procedural
unfairness, because the procedure for both trials was different. The cross-infection is due to the Judge's bias.
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Also, there is zero chance of this judge staying the Horizon trial in any event, and without a recusal application on the
cards, I cannot see the C of A moving quick enough to stay the Horizon trial on normal appeal grounds.
This plan will almost certainly fail, will just waste time and make PO look indifferent to recusal when it needs to move
forcefully.
Just my two cents...
A
Andrew Parsons
Partner
Womble Bond Dickinson (UK) LLP.
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DICKINSON ¥) (in)
From: Tom Beezer
Sent: 20 March 2019
To: Gideon Cohen ‘ GRO I David Cavender: _
_} Stephanie Wood
Subject: FW: recusal [WBDUK-AC.FID26896945]
All
The client askes the question below. Views ?
Tom Beezer
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Partner
Womble Bond Dickinson (UK) LLP
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DICKINSON &
From: Jane MacLeod [mailto}
Sent: 20 March 2019 07:14
To: Tom Beezer
Cc: Andrew Parsons; Rodric Williams
Subject: recusal
Tom
I have been asked to see whether an approach along the following lines (as an alternative to recusal) would
be possible procedurally:
“1. inform the judge that the company is appealing on the law and unfair procedure
2. ask the judge to stop the Horizon trial until the outcome of the appeal is determined on the grounds that if
the unfairness claim is upheld it would also put the fairness of the Horizon trial at risk
3. If the judge refuses 2, seek and order from a higher court to the same effect and ask the judge at least to
stop the Horizon trial until such an order can be obtained (or not)
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If the remedy in 3 is sought but isn’t obtained we will at least have tested the relevance and implications of
unfairness issues on the second trial. And effectively a higher court will have told us that any unfairness in
the first trial would not impact the Horizon trial (obviously contrary to POL’s view).
If the remedy in 3 doesn’t exist in law then recusal would be an alternative at that point. It seems to me the
judge’s refusal to agree to 2 would support a recusal application as he would be unwilling to accept that if
unfairness took place in the first trial the nature of it would necessarily affect the conduct and fairness of the
Horizon trial - a view which logically suggests bias as it is absurd.”
Could we please test this with the Counsel team? It may have the outcome that the judge is asked to recuse
himself, but not necessarily. And seems to assume that we could get an appeal quite quickly, which must be
uncertain. I’m also not sure that the logic in 2. holds up, and 3 means arguing procedural unfairness without
(necessarily) arguing mis-application of the law ete.
Thanks,
Jane
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