Factual and Procedural Background
The Plaintiff, Company A, seeks revocation of a Supplementary Protection Certificate (SPC) related to escitalopram held by the Defendant, Company B, on grounds of invalidity of the underlying patent ("the Patent"). The case involves an appeal against a refusal by the trial judge, Judge Arnold, to recuse himself due to an alleged risk of subconscious bias arising from a past academic supervisory relationship with one of the Plaintiff's expert witnesses, Professor Expert A.
The trial was scheduled to commence in November 2013, following procedural directions made earlier that year. The Defendant's recusal application was based on the argument that a fair-minded and informed observer would perceive a real possibility of bias due to the judge's prior role as a university student supervised by Professor Expert A during his undergraduate studies in chemistry approximately 30 years earlier.
The recusal application was heard and refused by Judge Arnold, who provided detailed reasons for his decision. The Defendant appealed this refusal, and the appellate court delivered an immediate dismissal of the appeal with reasoned judgments to follow.
Legal Issues Presented
- Whether the judge should have recused himself on the ground of apparent bias arising from a past supervisory relationship with an expert witness for the Plaintiff.
- Whether the fair-minded and informed observer would conclude there is a real possibility of subconscious bias affecting the judge's assessment of expert evidence.
- The applicability of the legal test for apparent bias in the context of a judge's prior academic relationship with an expert witness.
- The relevance and weight of analogies from prior case law concerning subconscious bias and apparent bias.
Arguments of the Parties
Defendant's Arguments
- Asserted that a fair-minded and informed observer would perceive a real possibility of subconscious bias given the judge's past supervisory relationship with Professor Expert A.
- Relied heavily on the precedent set in Lawal v Northern Spirit Limited regarding the risk of subconscious bias arising from prior authority or influence.
- Emphasized the significance of the judge having been supervised by Professor Expert A during a research project that led to a co-authored paper, and that the judge had been offered further academic supervision by Professor Expert A.
- Highlighted the judge’s own statements describing "Baldwin's Rules" as "famous" and the possibility that the judge's view might be subconsciously influenced by his academic experience with Professor Expert A.
- Contended that the Oxford University regulations prohibiting Professor Expert A from assessing the judge's doctoral thesis due to their supervisory relationship underscored the risk of lack of objectivity.
Plaintiff's Arguments
- Denied any real possibility of subconscious bias, arguing the judge’s past academic relationship was remote in time and limited in nature.
- Contended that the judge’s extensive professional experience, including as a barrister, Queen’s Counsel, and High Court judge, negated any risk of subconscious bias.
- Pointed out the lack of ongoing contact between the judge and Professor Expert A for approximately 30 years, aside from a brief attendance at a retirement dinner.
- Emphasized that the judge also received instruction from another expert witness for the Defendant, Professor Expert B, who succeeded Professor Expert A, indicating no disparity in authority or influence.
- Argued that the judge’s comments regarding "Baldwin's Rules" were consistent with established facts and did not demonstrate bias.
- Rejected the relevance of university regulations on doctoral supervision to the judicial context.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Lawal v Northern Spirit Limited [2003] UKHL 35 |
Real possibility of subconscious bias arising from prior authority or influence within a tribunal. |
Considered by Defendant as analogous to risk of subconscious bias from judge’s prior supervisory relationship; court distinguished based on factual differences including time elapsed and nature of relationship. |
| Porter v Magill [2001] UKHL 67 |
Test for apparent bias: whether a fair-minded and informed observer would conclude there is a real possibility of bias. |
Confirmed as the applicable test for apparent bias in this case. |
| R (McCarthy) v Sussex Justices [1924] 1 KB 256 |
Justice must not only be done but must be seen to be done. |
Reiterated as a fundamental principle underlying the test for apparent bias. |
| Helow v Secretary of State for the Home Department [2008] UKHL 62 |
Clarification of the fair-minded and informed observer standard; acknowledgment that subconscious bias cannot be wholly excluded. |
Referenced to explain the standard of the observer and the possibility of subconscious bias. |
| AWG Group Limited v Morrison [2006] EWCA Civ 6 |
Appellate courts’ role in assessing disqualification for apparent bias; not discretionary but based on objective assessment. |
Supported the appellate court’s independent assessment of the recusal issue and rejection of the appeal. |
| Locabail (UK) v Bayfield Properties [2000] 1 All ER 65 |
Precautionary principle in recusal applications prior to trial. |
Discussed in relation to the judge’s inclination to recuse but reaffirmed that the legal test remains unchanged. |
| Assicurazioni Generali SpA v Arab Insurance Group [2002] EWCA Civ 1542 |
Appellate review of multi-factorial decisions and disqualification for apparent bias. |
Distinguished between general multi-factorial decisions and disqualification decisions, endorsing appellate court’s independent role. |
| Generics (UK) Ltd v H. Lundbeck [2007] EWHC 1040 (Pat) |
Established that Baldwin's Rules were well known to organic chemists in 1988, though their application was disputed. |
Used to contextualise the expert evidence and the judge’s comments on Baldwin's Rules. |
Court's Reasoning and Analysis
The court began by reaffirming the established legal test for apparent bias: whether a fair-minded and informed observer would conclude there is a real possibility of bias, including subconscious bias, in the judge’s conduct. It emphasized that justice must not only be done but must be manifestly seen to be done.
The court carefully examined the factual context of the judge’s prior relationship with Professor Expert A. It noted that the relationship was limited to a university supervisory role over a research project lasting less than a year, completed over 30 years ago, with no ongoing contact save a brief attendance at a retirement dinner. The judge’s role as a student was contrasted with his current status as an experienced High Court judge, barrister, and Queen’s Counsel, equipped with judicial training to identify and mitigate cognitive bias.
The court considered the Defendant’s reliance on the Lawal case but found the analogy weak due to significant factual differences, including the recency of the relationship and the nature of the parties involved. The court rejected the argument that the university regulations concerning doctoral supervision were relevant to the judicial context.
The court addressed the judge’s remarks about "Baldwin's Rules," concluding that describing them as "famous" was consistent with established expert evidence and did not indicate subconscious bias. The absence of any immediate objection by the Defendant’s counsel at the time of the remarks further supported this conclusion.
Overall, the court found that the fair-minded and informed observer would not perceive a real possibility of subconscious bias arising from the judge’s past academic relationship with Professor Expert A. The court also noted that the judge provided detailed and cogent reasons for refusing to recuse himself, and that the appellate court was well placed to assess the issue independently.
Holding and Implications
The court’s final decision was to DISMISS the Defendant’s appeal against the refusal to recuse the judge.
This decision means that the trial proceeded before Judge Arnold as originally scheduled. The ruling confirms that a remote and historical academic supervisory relationship does not, without more, give rise to a real possibility of subconscious bias warranting recusal. The court emphasized the importance of the established test for apparent bias and the necessity to consider the particular facts and context of each case. No new precedent was set beyond reaffirming these principles and applying them to the circumstances of this case.