WONG DIN SHIN v. NINA KUNG

HCAP8/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO.8 OF 1999

-------------------------

-------------------------

-------------------

D E C I S I O N

--------------------

1. This is an application by summons on the part of the defendant for an order that her application to remove the joint administrators pendent lite ("the Administrators") not be heard by Chung J or me.

Background

2. Briefly stated, the background relevant to this application is as follows.

3. In April 1990, Mr Wang Teh Huei, the son of the plaintiff and the husband of the defendant, was kidnapped and went missing. More than nine years later, by an Order dated 22 September 1999, the plaintiff was granted leave to swear to the death of Mr Wang.

4. On 24 September 1999, the plaintiff commenced these probate proceedings seeking to propound a will of Mr Wang, under which the plaintiff is named the sole beneficiary of Mr Wang's estate. By way of counterclaim, the defendant also sought to propound another will under which she was named the sole beneficiary of Mr Wang's estate. On 21 November 2002, Yam J gave judgment in the probate proceedings in favour of the plaintiff. By a Notice of Appeal dated 27 December 2002, the defendant appealed against the judgment. The appeal had been heard and judgment of the Court of Appeal is pending.

5. In the meantime, the plaintiff applied by summons for the appointment of administrators pendente lite to the estate of Mr Wang ("the Estate"). The defendant initially opposed the plaintiff's application, but eventually withdrew the opposition. On 15 March 2000, Mr Christopher Barlow from PricewaterhouseCoopers and Mr Tan Man Kou of Deloitte Touche Tohmatsu were appointed the Administrators. Mr Barlow was proposed by the plaintiff whereas Mr Tan was proposed by the defendant. On 17 July 2000, Letters of Administration was granted to the Administrators. On 12 June 2001, upon the retirement of Mr Barlow, he was replaced by Mr Cheung Yat Ming of PricewaterhouseCoopers. By an order of 26 November 2002, the appointment of the Administrators was extended by consent to await the resolution of the defendant's appeal against Yam J's judgment.

The administration of the Estate

6. Since their appointment, the Administrators had made several applications against the defendant for disclosure and other relief. They had also commenced or caused to be commenced several pieces of litigation either directly or indirectly against the defendant or entities in which she is interested. Various interlocutory applications had also been made in these proceedings. At the same time, the Administrators had also caused their nominees to be appointed to the board of directors in a number of companies in which the Estate is beneficially interested.

7. In respect of the proceedings brought by the Administrators, they were commenced with leave of the Court in compliance with paragraph 4(3) of the Order dated 11 April 2000, under which the Administrators were authorized to bring proceedings either in the name of the Estate or in their own names. Given that they were contemplated to be hostile litigations involving the defendant, the leave applications were all made ex parte and the information and materials in support of the leave application had not been disclosed to the defendant as well as the plaintiff. These leave applications were dealt with by me and mostly on papers.

8. The defendant had previously sought unsuccessfully to have the information and materials led by the Administrators in support of the leave applications disclosed to her. These applications were dealt with by Chung J and myself.

9. In the course of the administration of the Estate, the Administrators, as directed by paragraph 4(7) of the Order of 11 April 2000, report to the Court on the progress and conduct of the administration on a quarterly basis. The Administrators also make applications for their costs and disbursements on regular basis. The Administrators' reports and bills are submitted to and read by me. Copies of these reports and bills, save those parts that the Administrators considered to contain confidential information, had in the past been provided to the plaintiff and the defendant. Subsequent to the judgment of Yam J in the probate proceedings, an order was made on 26 February 2003 with the consent of all parties whereby the Administrators are no longer required to provide to the defendant their quarterly reports and bills.

The defendant's application

10. On 25 September 2003, the defendant issued a summons under sections 33 and 40 of the Probate and Administration Ordinance, Cap.10 ("the PAO") and the inherent jurisdiction of the Court. Paragraphs (i) and (ii) of the summons had been disposed of on 28 October 2003. Paragraphs (iii) and (iv) of the summons seek the following relief :

"	(iii)	that the application in terms of paragraph (iv) below be heard before a Judge of the High Court other than the Honourable Madam Justice Chu and the Honourable Mr Justice Chung on a date to be fixed in consultation with the diaries of the parties' Leading Counsel;
	(iv)	that, TAN MAN KOU and CHEUNG YAT MING, the Joint Administrators pendite lite of the estate of Wang Teh Huei ('the Estate') respectively appointed by the Orders herein dated 15 March 2000 and 26 June 2001 be removed with immediate effect in the interests of the Estate and by reason of their conduct in their administration thereof, and be replaced by such other person(s) as the Court may deem fit".

11. Paragraph (iii) of the defendant's summons ("the Recusal Application") is the subject matter of this hearing. Plainly, by its terms, it seeks an order that the application under paragraph (iv) of the summons ("the Removal Application") not be listed before either Chung J or myself (collectively referred to as "the Administrative Judge").

12. By a summons dated 7 November 2003 ("the Administrators' summons"), the Administrators apply to adjourn the Removal Application until after the final determination of the probate proceedings and the appeals therefrom. Paragraphs 2 to 5 of the Administrators' summon further seek directions on the capacity in which the defendant brings the Removal Application and also the scope of the Removal Application.

13. As indicated at the end of this hearing, I do not regard the Recusal Application as extending to the Administrators' summons. The defendant is bound by the terms of her own summons, which cannot cover the Administrators' summons that was made later in time. This clarification has become necessary because Mr Potts QC indicated towards the end of the hearing that the Recusal application should cover not only the Removal Application, but also the Administrators' summon. Mr Bleach SC raised strong objection to this. In my view, if it was intended that the Recusal Application should also cover the Administrators' summon, the defendant ought either to amend her summons or issue a fresh summons, or, at the very least, make this clear in counsel's skeleton argument. Instead, paragraph 1 of counsel's skeleton argument describes the application as related to the application for the removal of the Administrators. The Administrators have therefore not been afforded a proper opportunity to meet the proposed extension of the Recusal Application. The defendant should be restricted to the terms of her summons.

The grounds for the recusal application

14. The basis for the Recusal Application appear by paragraphs 5 to 7 of the 12th affirmation of the defendant, leading the application, and are in these terms :

"5. ...The Removal Application calls into question the integrity, the conduct and the activities of the Joint Administrators. These matters will therefore be subject to the Court's critical review. Based on advice from Leading Counsel, I believe that it would be inappropriate for either Madam Justice Chu or Mr Justice Chung to hear the Removal Application. The reason for this is that it appears that some of the actions complained of, as grounds for the Removal Application are likely to have been the subject of applications by the Joint Administrators for leave or sanction which were heard and determined by Madam Justice Chu or Mr Justice Chung. These applications have always been ex parte. Neither I nor my legal advisers have seen the written materials submitted in support of any such applications.

6. It appears very probable that the Joint Administrators will attempt to justify their conduct by claming that they have acted with the authority of the Court. This is likely to lead to a consideration of the scope of authority given to the Joint Administrators by the previous orders of the Court. It may possibly lead to consideration of whether those orders imposed sufficient disciplines and controls over the Joint Administrators. I respectfully submit that it would be embarrassing and inappropriate for the Judge who made those orders to be drawn into such a process.

7. In addition, it is at this stage uncertain whether it will be necessary or appropriate for the materials, or some of the materials, that were placed before the Administration Judge to be made available to the Judge hearing my application to remove the Joint Administrators. If those materials are not made available to the Judge hearing my application (and, therefore, not available to me either), and if the Judge hearing my application were the Administration Judge, that would place that judge in an impossible position. The Administration Judge hearing my application would have to attempt to shut out of his or her mind all the information he or she had learned during the course of the administration and all the impressions and opinions formed during that process. If this were not done, a fair hearing of my application would not be possible. This is because it would in part be influenced by material I had not seen and on which I was in no position to comment. But I would respectfully submit that it would also be very difficult for a Judge to close his or her mind to such material and impressions and opinions based on it. The appearance of bias would be unavoidable."

15. The Recusal Application is therefore based on two grounds. Firstly, the Administration Judge will come under embarrassment in that the Removal application involves issues as to whether previous orders granted by the Administration Judge impose sufficient discipline and controls over the Administrators. Secondly, the defendant would not have a fair hearing in that it is impossible for the Administration Judge to shut out of his mind information previously imparted to him by the Administrators in confidence or the impressions and opinions formed during the ex parte applications. It is also said that the appearance of bias would be unavoidable.

The Removal Application

16. It is important for the proper determination of the Recusal Application to look at the broad grounds of the Removal Application as well as the nature of the Removal Application.

17. In the 13th affirmation of the defendant leading the Removal Application, a total of eight broad grounds were put forward. They are :

(1)	Interference issue
	It is said that the Administrators have mis-used their position as shareholders in a number of companies in which the Estate is interested to interfere with the management of these companies.
(2)	Abuse issue
	The manner of the Administrators' intervention is said to be abusive and offensive, and has also wasted valuable time of the senior management of the companies involved.
(3)	Conflict of duty issue
	It is said that Administrators' duties to the Estate is in conflict with their duties as directors of the companies in which the Estate is beneficially interested.
(4)	Competence issue
	The Administrators are criticized as being not experienced to manage a substantial real property development business.
(5)	Wilful blindness issue
	In seeking appointment to the board of directors of Chime Corporation and its subsidiaries, the Administrators are said to have acted in willful disregard of the judgments of Deputy Judge Gill and the Court of Appeal made on 14 December 2001 and 31 July 2002 respectively.
(6)	Justification issue
	The defendant considers that no justification exists for the Administrators' invention in the management of the companies.
(7)	Break up issue
	The five major pieces of litigation brought by the Administrators are unnecessary pending the final resolution of the probate action, and have unraveled the interconnections between the companies within the Chinachem group. The defendant complains that the Administrators have acted unreasonably and not even-handedly and are causing harm to her and the Estate.
(8)	Control issue
	In maintaining the litigations, the Administrators are not under any costs sanction. At the same time, their activities had generated substantial costs. The defendant considers that the costs and expenses of the Administrators are of such magnitude that gives cause for serious concerns.

18. As explained by Mr Carr QC at the direction hearing of the defendant's summons on 15 October 2003, the defendant brought the Removal Application in two capacities. The first is as a potential beneficiary of the Estate. The other is as a substantial shareholder in the many companies in which the Estate is interested, some of which are said to be in an adversarial relationship with the Administrators. It is because of this dual capacity that the Administrators' summons was issued. By the summons, the Administrators seek a direction that the Removal Application should only be brought in the defendant's capacity as beneficiary and be confined in scope to the effect of the administration of the Estate on the defendant as a beneficiary. The Administrators' position is that the scope of the Removal Application will impact upon the relevance of the confidential materials in support of their leave applications as well as the extent to which they are relevant.

19. In terms of the nature of the Removal Application, the defendant contends that it is a piece of ordinary hostile litigation between a beneficiary and a trustee such that the right to a fair hearing mandates that the rules of natural justice must be observed, that the Removal Application must be considered on the basis of evidence which is known to the parties and the judge, that there should not be any appearance of bias, and that the Removal Application should not be heard by the Administration Judge. In respect of the last part of the submission, Mr Potts QC argues it as a matter of general principle. It is said that judges in charge of administration of estates should not hear applications to discharge or remove the administrators of the estate.

20. The Administrators accept that the Removal Application is contentious and adversarial in nature, but take issue with the defendant's contention that it is equivalent to ordinary hostile litigation between trustee and beneficiary. It is submitted that the Removal Application is part of the administration of the Estate.

21. Section 33(3) of the PAO, under which the defendant's summons was issued, provides :

"The court may, if satisfied that the due and proper administration of the estate and the interests of the persons beneficially entitled thereto so require, suspend or remove an executor or administrator (other than the Official Administrator) and provide for the succession of another person in place of such executor or administrator and for the vesting in that other person of any property belonging to the estate."

22. Evidently, the court's discretionary power to remove administrator is only to be exercised for the due and proper administration of the estate and having regard to the interests of the beneficiaries and potential beneficiaries. As in the case of the appointment of administrator, the court's power to remove administrator is exercised within and as part of the administration of the estate. Where the removal is opposed, it will be adversarial and contentious in nature, just as in the case of a contested application to appoint administrators. But it cannot be equated with an ordinary hostile litigation between trustee and beneficiary, such as a claim for remedies for breach of trust. It also does not, as a matter of general principle, lead to the consequence that the judge in charge of the administration of the estate being disqualified from hearing the application to discharge or remove the administrator. If the defendant's argument is correct, it would mean that a judge who had presided over a contested application for appointment of administrator will be precluded from giving consequential directions on the administration of estate and also from being involved in applications arising in the course of the administration. That plainly cannot be right.

23. Mr Potts QC draws assistance from cases of receivers and liquidators. In his submission, the Companies Judge who had heard application for appointment of receiver or provisional liquidator and had dealt with ex parte applications from the receiver or provisional liquidator should not as a matter of rule hear contested application to discharge the receiver or provisional liquidator. I am unable to agree to this submission. It certainly does not accord with the practice in the Companies Court.

24. Mr Potts QC relies heavily on two passages in McDonald v. Horn [1995] 1 All ER 961 at 970j-971c, and Alsop Wilkinson v. Neary & Ors [1996] 1 WLR 1220 at 1224H-1224G for the submission that the Removal Application is an ordinary hostile litigation between trustee and beneficiary. In McDonald v. Horn, the plaintiffs, who were members of a pension fund, brought an action against the trustees of the pension fund alleging breaches of trust and abuses of fiduciary power. They successfully applied to the court for a pre-emptive costs order to enable their costs to be paid out of the pension, irrespective of the outcome of their claim against the trustees. The defendants appealed against the order. In considering whether the plaintiffs were entitled to have their costs paid out of the pension fund, Hoffmann LJ (as he then was) referred to the judgment of Kekewich J in Re Buckton, Buckton v. Buckton [1907] 2 Ch 406 at 413-415, and summarized it as follows :

" ... trust litigation could be divided into three categories. First, proceedings brought by trustees to have the guidance of the court as to the construction of the trust instrument or some question arising in the course of administration. In such cases, the costs of all parties are usually treated as necessarily incurred for the benefit of the estate and ordered to be paid out of the fund. Secondly, there are cases in which the application is made by someone other than the trustees, but raises the same kind of point as in the first class and would have justified an application by the trustees. The second class is treated in the same way as the first. Thirdly, there are cases in which a beneficiary is making a hostile claim against the trustees or another beneficiary. This is treated in the same way as ordinary common law litigation and costs usually follow the event. Kekewich J acknowledged that it is often difficult to discriminate between cases of the second and the third classes, but said ([1907] 2 CH 406 at 415) :

'... when once convinced that I am determining rights between adverse litigants I apply the rule which ought, I think, to be rightly enforced in adverse litigation, and order the unsuccessful party to pay the costs.'

..."

25. In Alsop Wilkinson v. Neary, the plaintiffs were a firm of solicitors and had obtained judgment against the 1st defendant, its former partner. The 1st defendant had made two settlements in favour of himself and his family. The plaintiffs sought a declaration against the 1st defendant and the trustees of the settlements that the transfers to the settlements were void under the Insolvency Act 1986. The trustees applied to the court for directions on whether to defend the action and for a pre-emptive costs order. Lightman J dismissed both applications. In discussing the incidence of costs, Lightman J pointed out that trustees may be involved in three kinds of dispute : a trust dispute, a beneficiaries dispute and a third party dispute. In respect of a trust dispute, it was observed that it might be "friendly" or "hostile" litigation. Referring to Re Buckton, Buckton v. Buckton, he said that "the line between friendly and hostile litigation, which is relevant as to the incidence of costs, is not always easy to draw". As to beneficiaries dispute, Lightman J described it as "a dispute with one or more of the beneficiaries as to the propriety of any action which the trustees have taken or omitted to take or may or may not take in the future. This may take the form of proceedings by a beneficiary alleging breach of trust and seeking removal of the trustees and/or damages for breach of trust". Lightman J went on to consider a trustee's entitlement to an indemnity against his costs. Citing McDonald v. Horn, he stated that "[a] beneficiaries dispute is regarded as ordinary hostile litigation in which costs follow the event and do not come out of the trust estate".

26. Plainly, in referring to a beneficiary's hostile claim against the trustee for remedies in breach of trust as an "ordinary common law litigation" or "ordinary hostile litigation", Hoffmann LJ and Lightman J were dealing with the incidence of costs. It does not follow from their judgments that the defendant's Removal Application can be equated with an ordinary hostile litigation between a beneficiary and a trustee. Although the defendant is seeking a discharge of the Administrators, she is not making a beneficiary's claim or seeking remedies against the Administrators. While the court will have regard to the interests of the beneficiary or the potential beneficiary (which include both the interests of the plaintiff and of the defendant), the court's power to discharge or remove administrators under section 33(3) of PAO is to be exercised for the due and proper administration of the Estate. It is a power to be exercised in the course of and for the purpose of the administration of the Estate. I do not read the judgments of Hoffmann LJ and Lightman J in McDonald v. Horn and Alsop Wilkinson v. Neary as lending support to the submission that the Removal Application is an ordinary hostile litigation between beneficiary and trustee such that it should not, as a general principle, be heard by judges who have been exercising administration jurisdiction over the Estate.

Embarrassment

27. The first ground for the defendant's Recusal Application is that the Administration Judge will come under embarrassment if he were to hear the Removal Application. The argument is that the Administration Judge would be assuming a twofold position, namely, as the administration judge sanctioning the acts of the Administrators , and also as the tribunal deciding on whether the acts of the Administrators and any disciplines and controls imposed on them are proper and sufficient. Mr Potts QC explains that the tribunal hearing the Removal Application will be called upon to decide two matters: Firstly, whether the orders granting leave are worded too widely, and secondly, whether the Administrators have acted outside or abused the orders granting leave. In respect of the latter issue, Mr Potts QC accepts that it will not cause any embarrassment to the Administration Judge. As to former, it is submitted that it will be personally embarrassed for the Administration Judge to be drawn into the process of considering whether his orders sanctioning proceedings brought by or at the instance of the Administrators were appropriately worded.

28. I am inclined to agree that if indeed the judge hearing the Removal Application has to determine whether his previous orders and directions were appropriately worded, he may come under some embarrassment. However, I am not convinced that the propriety of the orders and directions previously made by the Administration Judge is a relevant issue in the Removal Application. No doubt, the core issue in the Removal Application is whether the Administrators are fit and proper persons to administer the Estate. As is apparent from the grounds for the Removal Application set out in the defendant's 13th affirmation and summarized above, the defendant's complaints relate primarily to the propriety of the Administrators' actions in a number of companies within the Chinachem group and in which the Estate is interested. Insofar as these are actions taken without the prior leave or sanction of the court, there is no question of subjecting previous orders and directions of the Administration Judge to scrutiny.

29. In respect of actions taken with the leave or sanction of the court, the Administrators, as they have indicated, will seek to justify them on the basis of the court's sanction. The defendant has accepted that she has no entitlement to access the materials the Administrators placed before the Administration Judge in the course of administration in support of their ex parte applications for leave and directions. In my view, it must follow that the defendant has to accept that the Administrators can rely on the sanctions of the court to justify actions or proceedings that they have undertaken. It is to be noted that the issue of whether the Administrators' actions in bringing proceedings are justified is an issue different from and is not to be assessed by the outcome of those proceedings for the simple reason that the failure of a piece of litigation does not necessarily mean that the litigation ought in the first place never to have been brought.

30. The defendant has made it clear that the Removal Application is not based on any charge of misrepresentation or non-disclosure on the Administrators' part in obtaining leave and directions from the Administration Judge. That being the case, the propriety of the orders and directions previously made in the course of administration and whether their ambit is too wide are plainly irrelevant to whether the Administrators have acted with propriety. Even if the orders and directions were, as the defendant suggests, too widely worded, so long as the Administrators have acted within their terms, it does not afford any ground for challenging the propriety of the Administrators' actions. The defendant may not like or even feel aggrieved by the directions or sanctions given by the Administration Judge made in the course of the administration of the Estate, but she can only challenge them within the avenues permitted by law. She cannot seek to challenge these directions and sanctions in the context of a criticism of the manner in which the Administrators carry out their power or exercise the discretion conferred by these directions and orders. I therefore cannot agree with the defendant's argument that the Removal Application will involve a personal criticism of the Administration Judge in the context of what the Administrators did and the manner in which they did it, even where their actions fall within the terms of the court's orders and directions.

31. Thus analyzed, whether the orders and directions of the Administration Judge have imposed proper and sufficient disciplines and controls on the Administrators is irrelevant to the Removal Application, and does not fall to be considered by the tribunal hearing the Removal Application. The first ground of potential embarrassment therefore fails.

Right to a fair hearing and the appearance of bias

32. The main thrust of the defendant's argument under the second ground for the Removal Application is that the Administrators had in the course of administration placed before the Administration Judge certain confidential information, which has been withheld from the defendant. It is submitted that the rule of natural justice requires that the defendant be given the opportunity to see, comment on and challenge these information, and that the Removal Application should be considered solely on the evidence which is known to the parties and the court. The defendant argues that, to ensure a fair hearing or a leveled playing field, it follows that the Administrators cannot rely on the confidential information in arguing the Removal Application, and the Administration Judge must recuse himself from hearing the Removal Application. It is said that the recusal is necessitated by two reasons : Firstly, it will be impossible for the Administration Judge to shut his mind to the confidential information previously imparted to him and the impressions and opinions he had formed on these materials. Secondly, this is to avoid the appearance of bias.

33. Fundamental to the defendant's argument of a fair hearing or a leveled playing field, is her assertion that the Removal Application is a piece of hostile litigation between a beneficiary and a trustee that determines the rights between the defendant and the Administrators. As noted above, the Removal Application is part of the administration of the Estate and does not determine the rights between the defendant qua potential beneficiary and the Administrators qua trustee. It follows that the rule of audi alteram partem, on which the defendant relies, does not necessarily apply or apply with full force. The rule may be displaced where disclosure of the confidential but relevant information to an interested party would be materially prejudicial to the interests of other persons, and in this case, the Estate: Halsbury's Laws of England (4th edition 2001 Re-issue) vol.1(1) para.105, Decisions of Chung J in these proceedings dated 21 February and 9 March 2001.

34. As Mr Bleach SC rightly identifies, the defendant's complaint under this ground boils down to this: that there are some confidential information known to the Administrators and the Administration Judge, but not to the defendant. Mr Bleach SC submits, and I accept, whether these confidential information is relevant to the Removal Application and the extent of its relevance will depend on the outcome of the Administrators' summons which will clarify the nature and the scope of the Removal Application. Insofar as the confidential information is relevant and pertinent to the Removal Application, the Administrators will have to rely upon it and bring it to the attention of the judge hearing the Removal Application. The Administrators may also have to seek directions from the judge on the disclosure of the confidential information to the defendant. The judge will come to know of the confidential information, and be placed in the same position as the Administration Judge.

35. That however is not the defendant's concern. In Mr Potts QC's submission, the defendant's fear lies not with confidential information that is relevant to the Removal Application, but with those confidential information that is irrelevant to the Removal Application. The defendant fears that the Administration Judge's mind may have been "poisoned" by the irrelevant confidential information, when the Removal Application should only be decided on the evidence before the court. It is said that because it is doubtful that the Administration Judge can put behind his mind all the irrelevant information, there is an appearance of bias.

36. Counsel are in agreement as to the law on apparent bias. The relevant test is that re-formulated in Porter v. Magill [2002] 1 AC 357 at 494 and adopted in Deacons v. White & Case Limited Liability Partnership [2003] 3 HKC 374. It is that the court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility that the tribunal was biased.

37. So far as the relevant circumstances are concerned, they are that the Administration Judge had in the course of administration been provided with certain confidential information and that they are irrelevant to the Removal Application. Although the defendant does not know the contents of these information, she is concerned that the Administration Judge may be poisoned by it and may have formed certain impressions and opinions based on such information. Additionally, the defendant considers that it is impossible for the Administration Judge to put behind his mind such information, impressions and opinions. The question is whether applying the reasonable apprehension test to the relevant facts of this case, would a fair-minded and informed observer conclude that there is a real possibility of bias. In my view, the answer is plainly in the negative.

38. Firstly, professional judges are by their training used to and have the ability to disregard and keep out of their minds materials, including evidence and submissions, which are irrelevant to the proceedings before them. As Mr Bleach SC points out, our system of justice is robust enough to accommodate such pragmatism. The relevant facts in this case do not point to any real ground for doubting the ability of the Administration Judge to ignore extraneous considerations, prejudices and predilections and to adjudicate on the Removal Application objectively on the materials properly before him. The defendant has not explained the grounds upon which her fear that the Administration Judge may be adversely influenced by the irrelevant confidential information and will not be able to disregard it in considering the Removal Application. In the circumstances, there is no reason for a fair-minded observer to apprehend a real possibility of bias.

39. Secondly, insofar as the defendant is suggesting that the Administration Judge's mind has already been poisoned by the confidential information and will not be able to ignore it despite that it is irrelevant, the defendant seems to be entering the area of actual bias as opposed to apparent bias. As noted above, the defendant has not identified any factual basis for the suggestions.

40. In short, neither the right to a fair hearing nor the rule against apparent bias requires that the Removal Application be heard by a judge other than the Administration Judge. The second ground for the Recusal Application also fails.

Conclusion

41. For the above reasons, paragraph (iii) of the defendant's summons is dismissed. There is no reason to depart from the general rule of costs follow event. Accordingly, there will be an order nisi that the defendant pays the plaintiff and the Administrators the costs of this application, to be taxed, in the case of the plaintiff on party-and-party basis and in the case of the Administrators on indemnity basis, if not agreed. There will also be a certificate for two counsel. The Administrators' own costs be paid out of the Estate on a trustee basis.