“Regretfully it is Halliburton’s position that Professor Limebeer has misunderstood his role in this case and has thereby disqualified himself as acting as scientific advisor to the Court.”
“Professor Limebeer has expressed opinions which are for this Court to decide and are not within the remit of the advisor. In short Halliburton submit that Professor Limebeer cannot continue to act as the advisor. The statements in his note (which the lay clients have seen) would mean that they could have no confidence in Professor Limebeer’s impartiality or ability to avoid becoming an advocate in the case.”
“35.15 (2) The assessor shall assist the court in dealing with a matter in which the assessor has skill and experience. (3) The assessor shall take such part in the proceedings as the court may direct and in particular the court may - (a) direct the assessor to prepare a report for the court on any matter at issue in the proceedings; and (b) direct the assessor to attend the whole or any part of the trial to advise the court on any such matter. (4) If the assessor prepares a report for the court before the trial has begun – (a) the court will send a copy to each of the parties; and (b) the parties may use it at trial. . . . ”
“This is an application concerning the validity of a patent in relation to colour television. We have looked at the specification and other matters. It is a case of extreme complication. We are satisfied that it is a proper case in which the court should appoint a scientific adviser to assist the court. We should appoint the man best qualified to assist. On the information before us, such a man is Mr Gouriet, who is the Chief Engineer of the Research Department of the British Broadcasting Corporation. We therefore appoint him as independent scientific adviser to assist the court . . .”
“The time we have spent, each of us, in preparation may be measured in days rather than in hours and although pre-reading has not included all the documents indicated, with the assistance of Dr Brenner we hope that we have achieved a superficial acquaintanceship, if not a full understanding of the elementary aspects of recombinant DNA technology and its particular relationship to the synthesis of tissue plasminogen activate. . . . I would like to say how grateful we are that we have been given the assistance of Dr Brenner . . . [He] will for the next three weeks be sitting with us as a scientific adviser and will be available to us out of court for consultation and instruction on purely scientific matters. He will not take part in any way in the decision making process. If by chance we become conscious that the advice he gives us may touch upon controversial matters such as the historical development of the art and that this might affect our judgments we will give each of you warning about this and an opportunity to address us before we prepare our judgments. . . .”
“Finally, I would add, in view of what I said at Day 1, page 2H of the transcripts concerning the role to be played by Dr Brenner, that Dr Brenner has played no part in the judicial decision-making process, nor has his advice had any influence upon that process, other than to provide a scientific factual background. Having said that, I would wish to repeat my acknowledgment of the inestimable assistance he has given to the court.”
“I would also wish at the very outset of this judgment to express my thanks to Dr Brenner, for his explanations of the scientific terms and procedures involved. Without those explanations, I would not, I apprehend, have come even remotely near to achieving some glimmering of what the scientific issues in this case are about.”
“Finally, no acknowledgments of ours would be complete without an expression of our debt to our scientific adviser, Dr Sydney Brenner. That a scientist as eminent and busy as he, was prepared to give up all the time necessary both during and after the hearing in order to instruct the court in molecular biology was remarkable in itself. But together with great learning he brought to his task total neutrality, a scrupulous capacity to avoid any expression of opinion on legal matters, unfaltering good humour, and a rare ability to communicate. In short, without him in this unfamiliar field our understanding of the facts would have been insufficient.”
“Before leaving the case, however, I would like to pay a particularly warm tribute to the valuable assistance which, with the agreement of the parties and in common with others of your Lordships, I received from Professor Michael D. Yudkin, Professor of Biochemistry at Oxford University, in a series of seminars which he gave in camera before the appeal was heard to introduce us to the relevant aspects of the recombinant DNA technology. The work which Professor Yudkin did by means of these carefully prepared seminars enabled all those involved to concentrate on the issues of law in the appeal without having to spend a good deal of extra time in the course of the hearing on learning about the technology. This had the effect of shortening the length of time that it was necessary to devote to the hearing by several days. It was at Lord Hoffmann’s suggestion in the course of a preliminary hearing that this was done, as there was no dispute about the technology. I suggest that it is a course which might usefully be adopted in the future in cases of this kind, where the technology is complex and undisputed and the parties are willing to consent to it.”
‘The concept of a fair hearing … implies the right to adversarial proceedings, according to which the parties must have the opportunity not only to make known any evidence needed for their claims to succeed, but also to have knowledge of, and comment on, all evidence adduced or observations filed with a view to influencing the court's decision.’ [59] Where the court has evidence from an expert who has not been called as a witness by either party - andCPR 61.12 makes it clear that nautical assessors are such experts - the principle needs to be adapted to the procedure. Its effect is that any consultation between the assessors and the court should take place openly as part of the assembling of evidence. Because the judge is not bound to accept the advice he receives from the assessors (see The Ansonia (1920) 2 Ll L Rep 123, 124), the parties are entitled to an opportunity to contend that he should or should not follow it. In many, perhaps most, cases the questions and advice taken together will be susceptible of little or no argument that has not already been directed to the issues which have prompted the questions. But fairness requires the opportunity to be given.” And, after explaining the earlier practice noted in The Hannibal (1867) LR 2 Ad&E 53, 56, he went on “[61] Such a practice would not, in our view, be compatible with Article 6; and it is right that, except in cases where such a discussion is unnecessary in the light of submissions made earlier, the preferable modern practice of putting questions to the assessors after discussion with counsel should be complemented by a practice of disclosing their answers to counsel, either orally or in writing - in order that any appropriate submission can be made as to whether the judge should accept their advice. ” We understand that to be the practice now adopted in the Admiralty Court – see the guidance given by Mr Justice Gross in The owners of the ship “Global Mariner” v The owners of the ship “Atlantic Crusader”[2005] EWHC 380 (Admlty) , [14],[2005] 1 Lloyd’s Rep 699 .But, as Mr Justice Gross observed (ibid, [16]): “[16] The aim is to strike the right (and proportionate) balance between the desirable goal of transparency on the one hand and the need to curb the cost and delay inherent in the ‘ping pong’ of post-hearing exchanges on the other.” ‘The concept of a fair hearing … implies the right to adversarial proceedings, according to which the parties must have the opportunity not only to make known any evidence needed for their claims to succeed, but also to have knowledge of, and comment on, all evidence adduced or observations filed with a view to influencing the court's decision.’
“[35] . . . the fact that [the present rule] does not permit disclosure to the parties of what passes between the judge and the assessor. Such disclosure may not be required where the assessor functions only to assist the judge in understanding technical evidence, particularly if expert evidence has been introduced on the issue in question. Where assessors venture opinions on factual matters at issue between the parties, however, natural justice requires more.” . . . At paragraph [40] she said this: “[40] I conclude that the old admiralty rule appointing assessors to assist the judge in making findings of fault to the exclusion of expert evidence should be revised. First, assessors should be permitted to assist judges in understanding technical evidence. Second, assessors may go further and advise the judge on matters of fact in dispute between the parties, but only on condition of disclosure and a right of response sufficient to comply with the requirements of natural justice. In all cases, the parties are entitled to call expert evidence subject to the limits and procedures set out in the Evidence Act and the rules of practice. I state these propositions as general guidelines, aware that it may be necessary or useful for the judge in a particular case, upon consultation with the parties, to vary how assessors are used and what procedures should be followed, depending on the nature of the trial and the issues to be determined. The essential is that the principles of natural justice that protect a fair trial should in all cases be preserved.”
“I am aware of the fact that legal matters are not for me, and that I should be cautious about introducing opinions of my own. If I have strayed across any of these boundaries I apologise in advance: some of the borders are poorly defined and therefore easily transgressed.”
“David Newland is a well known Cambridge Professor (as well as a past Head of Department) who works in mechanical dynamics and so is likely to be known by the whole UK multibody mechanical modelling community. In that respect there is nothing special about my relationship with Newland.”
“The mere fact that a judge, earlier in the same case or in a previous case, had commented adversely on a party or witness, or found the evidence of a party or witness to be unreliable, would not without more found a sustainable objection. In most cases, we think, the answer, one way or the other, will be obvious. But if in any case there is real ground for doubt, the doubt should be resolved in favour of recusal. We repeat: every application must be decided on the facts and circumstances of the individual case. . . . ”
“25. . . . There is no doubt that in his email Prof. Limebeer has expressed opinions which go beyond mere elucidation of the technology and stray into matters which it is for the Court to decide. He also states that he knows Prof. Newland . . . and clearly has views as to his abilities. 26. But the Comptroller is no longer convinced that this necessarily disqualifies Prof. Limebeer from acting as scientific adviser to the Court. After all, the Court has to decide whether to allow the appeal on the basis of the facts found by the trial judge and (to the extent that it is permissible to revisit it) the evidence given at the trial. The Court is surely well able to exercise its judicial function and to exclude from consideration any extraneous evidence or opinions. Prof. Limebeer is, after all, not the decision maker. Further, rule 35.15 allows the Court to use the scientific adviser as it wishes subject to fairness to the parties, which here includes giving Halliburton the opportunity to comment on the substance of Prof. Limebeer’s email.”