Court stays Brainlab suits pending recusal appeal

 The appellate court says continuing trials before the judge whose involvement is being challenged could undermine the integrity of the proceedings.

The Court of Appeal said the stay is not an attempt to delay the trials but necessary to preserve the integrity of the appellate process.

PUTRAJAYA:

The Court of Appeal has stayed further proceedings in two multimillion ringgit corporate suits pending an appeal by several defendants against a High Court judge’s refusal to recuse himself from hearing the cases.

A three-member bench comprising Justices Ahmad Fairuz Zainol Abidin, Evrol Mariette Peters and Leonard David Shim unanimously allowed the stay application today involving the interconnected High Court suits filed by German medical technology giant Brainlab AG and its Hong Kong subsidiary.

Fairuz, who delivered the broad grounds, said the recusal appeal raised a “serious and arguable issue” concerning the appearance of bias, and whether there was a real danger that the defendants might not receive a fair and impartial hearing.

The court said the stay was not an attempt to delay the trials but was necessary to preserve the integrity of the appellate process.

It noted that in one suit, further evidence would be heard, witnesses cross-examined, and interlocutory applications dealt with if the stay was refused, while final submissions were being prepared in the other.

“If the appeal is subsequently allowed and the learned judge is directed to recuse himself, substantial portions of the proceedings may have to be repeated before a differently constituted court,” said Fairuz.

The bench said this could result in duplication of work, as well as additional costs and use of resources, besides causing prejudice to the parties.

It also said the defendants should not be forced to choose between taking part in the ongoing trials and preserving their right to challenge the judge’s continued involvement.

“Participation in the continuing proceedings may be construed as acquiescence in, or waiver of, the objection to the learned judge continuing to hear the matter,” it said.

The judges also stressed the importance of public confidence in the administration of justice, saying the issue was not merely a private dispute but concerned confidence in the impartiality of the judicial process.

The court noted that the judge’s rejection of the bias allegations did not determine the appeal, as the question of whether he had correctly applied the test for apparent or real danger of bias remained before the Court of Appeal.

It also took into account an agreement between the parties that one of the suits should be disposed of before the other, as well as an undertaking concerning a Mareva injunction.

The recusal appeal is scheduled to be heard on Jan 21 next year.

The underlying suits were filed by Brainlab and its Hong Kong subsidiary against former regional sales director S Jayaveeran and other individuals and companies over an alleged unauthorised device-rental scheme, breach of fiduciary duties, and secret profits.

Previously, the High Court judge who dismissed the recusal application had ordered a total of RM1.36 million in costs to be paid personally by five solicitors acting for the defendants in the suits.

David Morais, Pavitra Pillai and Ann Vijayakumar appeared for Jayaveeran, while Gopal Sreenevasan represented Brainlab, its Hong Kong subsidiary and two others in today’s proceedings. - FMT