A High Court judge has recused himself from contempt proceedings in the ongoing legal battle involving international firm Dechert’s former head of white-collar crime Neil Gerrard. The proceedings, brought by mining giant Eurasian Natural Resources Corporation (ENRC) follow a High Court judgment last year in which Waksman described Gerrard as a 'highly unreliable and at times dishonest witness'.
That judgment followed Gerrard's evidence in the 'phase 1' trial between ENRC v Dechert and Ors where the mining company sued Dechert and Gerrard for alleged negligence and the Serious Fraud Office for alleged misfeasance in public office and inducing breach of contract.
Appearing remotely, Sasha Wass KC, for Gerrard, told the court than an impartial observer might conclude that the judge had made up his mind on the contempt. 'We say it would be inappropriate for My Lord to preside over the contempt hearing or indeed the permission for contempt. A fresh judge should take over for this limited part.’
However Nathan Pillow KC, for ENRC, said: ‘Having to decide different matters in different cases, even when there is substantial overlap is not bias, it is judging. What Your Lordship has not done is made any finding to the relevant criminal standard.'
Recusing himself from the contempt proceedings, Waksman said: ‘I do not intend to provide gloss on my judgment. Given the terms [in which] I rejected Mr Gerrard’s evidence, the fair-minded observer would conclude there is a real possibility that I would have pre-judged the issue [to be before committal proceedings] in some way. There is real doubt…the authority indicates I should recuse myself.’
The judge also made a costs order that, should Gerrard win the committal proceedings, ‘he will recover these costs from ENRC, if he is committed and loses, he will not have to pay ENRC’s costs.’
The judgment means that an application to listings will now need to be made for a new judge to deal with committal proceedings.
Waksman will continue as sitting judge for the upcoming trial in two weeks’ time which centres around causation in relation to last year’s case.
