Resolution Chemicals Ltd v H Lundbeck A/S [2013] EWCA Civ 1515

[2013] EWCA civ 1515Case No A3/2013/3031
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CHANCERY DIVISION
Mr Justice Arnold
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Monday 25 th November 2013
Before
THE CHANCELLOR OF THE HIGH COURTLADY JUSTICE HALLETTLADY JUSTICE SHARP
Between
Resolution Chemicals LimitedClaimant/H Lundbeck A/SDefendant/
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Richard Gordon QC, Miles Copeland and Emily MacKenzie (instructed by Wragge & Co) for Defendant/AppellantHugh Tomlinson QC (instructed by Olswang LLP) for Claimant/Respondent
JudgmentThe Chancellor Sir Terence Etherton :
[1]In these proceedings the claimant, Resolution Chemicals Limited (“Resolution”), seeks revocation of the Supplementary Protection Certificate SPC/GB02/049 (“the SPC”) for escitalopram in the name of the defendant, H. Lundbeck A/S (“Lundbeck”), on the grounds of the alleged invalidity of the basic patent on which the SPC is based, namely, European Patent (UK) No. 0 347 066 (“the Patent”).[2]This is an appeal against an order dated 22 October 2013 of Mr Justice Arnold, the effect of which in substance was to refuse an application by Lundbeck that he recuse himself from hearing the trial of the action which was due to commence in a window commencing on 11 November 2013.[3]The essence of Lundbeck’s recusal application is that a fair-minded and informed observer would conclude that there is a real possibility that Arnold J would be subconsciously biased in his assessment of the evidence of Professor Sir Jack Baldwin FRS, formerly Waynflete Professor of Chemistry at Oxford University, who is to act as one of Resolution’s expert witnesses addressing the issue of the validity of the Patent. Lundbeck maintains that the appearance of bias arises out of the association between the Judge and Professor Baldwin when Professor Baldwin became the Judge’s research supervisor in Part II of the Judge’s undergraduate degree studies in Natural Sciences (Chemistry) at Oxford University between October 1982 and May 1983.[4]In view of the proximity of the trial date, we announced our decision to dismiss Lundbeck’s appeal immediately following the oral submissions of Mr Richard Gordon QC, for Lundbeck, and Mr Hugh Tomlinson QC, for Resolution, on 31 October 2013. We said that our reasoned judgments would follow in due course. Background The attack on the Patent[5]The general background to the current proceedings is set out in an earlier judgment of Arnold J on various applications in these proceedings given on 12 April 2013 ([2013] EWHC 739 (Pat)) (an appeal from part of which was dismissed by the Court of Appeal on 29 July 2013: [2013] EWCA Civ 924) and in a judgment of Kitchin J in another set of proceedings for revocation of the Patent - Generics (UK) Ltd v H. Lundbeck [2007] EWHC 1040 (Pat), [2007] RPC 32.[6]In short, Resolution attacks the validity of the Patent on two grounds. The first ground is obviousness in the light of United States Patent No. 4,650,884. The second ground is obviousness in the light of an article entitled “Quantitative structure–activity in a series of selective 5-HT uptake inhibitors” by Allan J. Bigler et al published in the May-June 1977 edition of the European Journal of Medicinal Chemistry.[7]In determining those issues the court will have to consider whether certain steps were obvious to the notional “skilled person”. The “man skilled in the art” is a hypothetical skilled technician who has a very good background technical knowledge – the so-called common general knowledge - but he or she is uninventive: see generally the description by Jacob LJ in Technip France SA’s Patent [2004] EWCA Civ 381, [2004] RPC 46, especially at [6] to [15]. Expert evidence is adduced in cases on the validity of a patent to educate the court in the technology but also to assist the court on whether or not the relevant step would have been obvious to the notional skilled person having regard to the state of the art: Mölnlycke AB v Proctor & Gamble Ltd (No. 5) [1994] RPC 49 at 113 (Sir Donald Nicholls VC).[8]One of the matters in issue in the present case is what the skilled person would have thought about the applicability of “Baldwin’s Rules”. These are named after two papers written by Professor Baldwin. There is disagreement between the experts on that issue. The procedural

Background

[9]The present proceedings were commenced on 7 November 2012. On 24 January 2013 Roth J made an order which, among other things, gave directions for the trial of the claim. Paragraph 30 of his order provided as follows: “30. The trial of this action shall be listed on an expedited basis before Mr Justice Arnold if available on the earliest possible date after 11 November 2013, with a time estimate of 8 days and pre-reading estimate of 2 days with a technical complexity rating of 4”.[10]Patent actions are listed for trial in accordance with their technical complexity rated on a scale from 1 (simplest) to 5 (most complex). Cases with a technical complexity rating of 4 or 5 are listed before one of the two judges of the Patents Court who have science degrees and have specialised in intellectual property law throughout their career. Cases with a technical complexity rating of 1 – 3 may be listed before one of the other judges of the Chancery Division who have been assigned to the Patents Court who do not have that academic and professional background. At the time of Roth J’s order there were two specialist patent judges, Floyd J and Arnold J. Floyd J was precluded from hearing the case because, when in practice at the Bar, he had represented one of the parties at the trial of the previous claim for revocation of the Patent which was heard by Kitchin J. It was for that reason that Roth J’s order provided for the trial to be listed before Arnold J. Birss J was subsequently appointed a High Court Judge of the Chancery Division and is qualified to try patent actions with a technical rating of 4 or 5. He is, however, unable to hear the case due to a conflict of interests.

The Recusal Application

[11]During the course of the hearing before Arnold J of certain applications on 14 March 2013 Resolution’s counsel stated that Resolution had an expert opinion of Professor Baldwin. Arnold J commented that Professor Baldwin was his Part II supervisor. Counsel for Resolution stated that, at that stage, he could not say whether Resolution would be calling for Professor Baldwin, adding:
“but I have no reason to think that he would not be prepared to give evidence”
. There was correspondence between the solicitors for the parties in July 2013, in which Resolution’s solicitors stated that Resolution had been assisted by two experts, one of whom was Professor Baldwin, and that Resolution proposed to call a third expert to give evidence. On 19 July 2013 Resolution made an application for permission to call a third expert. That application was supported by a witness statement in which Resolution’s solicitor referred to experimental protocols which Resolution had obtained from Professor Baldwin and Professor Gerard Coquerel and stating that it would be necessary to call both those experts to give evidence at the trial and that Resolution needed to call a further expert. On 30 July 2013 Norris J made an order by consent giving Resolution permission to call a third expert.[12]On 6 September 2013, pursuant to the directions order of Roth J dated 24 January 2013, Resolution formally notified Lundbeck of the names of its expert witnesses, one of whom was Professor Baldwin.[13]On 11 September 2013 Lundbeck’s solicitors wrote to Arnold J requesting that he recuse himself from hearing the trial of the claim on the ground that his past connection with Professor Baldwin gave rise to a real possibility of apparent bias. That request was opposed by Resolution both on the merits and on the ground of waiver.[14]Accordingly, Lundbeck issued an application notice dated 30 September 2013 for a direction that the order of Roth J of 24 January 2013 be varied so as to provide that the trial of the action shall not be listed before Arnold J.[15]The principal evidence relied upon by Lundbeck in support of its application comprised(a) the Judge’s disclosure at the hearing on 14 November 2013 that Professor Baldwin had been his Part II supervisor,(b) some publicly available information about the curriculum vitae of Arnold J,(c) some general information concerning Oxford University’s chemistry course, explaining that Part II of the course consists of an academic year of research leading to an examined thesis,(d) a copy of the published Paper co-authored by Professor Baldwin and the Judge referred to below and(e) a copy of the rules for the appointment of DPhil examiners at Oxford University. Resolution’s evidence in reply included a letter from Professor Baldwin stating that he had no specific recollection of Arnold J and setting out his general practices with regard to the Part II students he supervised and his comments on the Paper.

The Hearing of the Recusal Application

[16]In advance of the hearing of the recusal application

the Judge noted the following observations of Patten LJ in Re L-B (Children) [2010] EWCA Civ 1118:

“22. Where a judge is faced with an application that he should recuse himself on the ground of apparent [bias] it is in my judgment incumbent on him to explain in sufficient detail the scale and content of the professional or other relationship which is challenged on the application. The parties are not in the position of being able to cross-examine the judge about it and he is likely to be the only source of the relevant information. Without this, it becomes difficult if not impossible properly to apply the informed bystander test set out by Lord Hope in his speech in Helow v Home Secretary [2008] 1 WLR 2416.”
[17]That caused the Judge to produce a note of his recollections, which he supplied to the parties shortly before the hearing. He reproduced the contents of the note in paragraphs [23] – [32] of his judgment. They are as follows: “23. It is difficult accurately to remember the events of more than 30 years ago, and my recollection has already been proved inaccurate in one respect. With the assistance of the evidence filed by the parties, however, I have done my best to recall the nature and extent of my contact with Professor Jack Baldwin FRS (he was knighted subsequently) when I was a student.24. I studied Natural Sciences (Chemistry) at Magdalen College, Oxford from 1979 to 1983. At that time, Prof Baldwin was the Waynflete Professor of Chemistry, a professorship endowed by Magdalen. I had no contact with Prof Baldwin through the college, since he did not teach there. My first and only contact with Prof Baldwin during Part I of the degree (the first three years) was when I attended a course of lectures on synthetic organic chemistry which he gave in the third year. As I recall it, the main focus of the lectures was upon “retrosynthetic analysis”, that is to say, analysing routes of synthesis by working backwards from the target compound. I found the content of the lectures interesting even though they were poorly delivered, and therefore asked Prof Baldwin to be my Part II supervisor (to the amusement of several of my contempories).25. The research project to which Prof Baldwin assigned me was a project to synthesise a cyclopentanoid isonitrile called ‘270’ which was a metabolite of Trichoderma fungi. This was a project on which two post-doctoral workers in Prof Baldwin’s research group, Dr David Kelly and Dr Carl Ziegler, were already engaged. It was a challenging project because of the presence of the sensitive isonitrile group in the target compound. As I recall it, Dr Kelly was pursing one main route to the synthesis, while Dr Ziegler was pursing another. Prof Baldwin assigned me to explore some variants of the route Dr Ziegler was pursuing.26. My research was undertaken during the period from early October 1982 to early May 1983. At that time, Prof Baldwin had a large research group. My recollection is that, including two other Part II students and myself, there were between 45 and 50 people in the group that year. There were periodic meetings of the whole group to discuss current research, but I do not recollect my research being discussed in that forum. My recollection is that I saw Prof Baldwin about once every four weeks for about half an hour. I think that Dr Ziegler was also present at most of these meetings. During the meetings, I updated Prof Baldwin on what I had done since our last meeting, and he gave me ideas for what to do next. On a day-to-day basis, I was supervised by Dr Ziegler and to a lesser extent by Dr Kelly. This recollection is supported by the fact that, in the acknowledgements to my thesis, I thanked Prof Baldwin for “his stimulating supervision” and Drs Ziegler and Kelly for “endless advice”. (I note with sadness that I have discovered from the internet that both Dr Ziegler and Dr Kelly have since passed away, Dr Kelly in 2008 and Dr Ziegler in 2012.)27. My abiding recollection of that period was that I found it quite demoralising. I did not find the laboratory environment congenial and I was frustrated by the fact that most of my experiments failed. By contrast, I found writing my thesis, which I presented in June 1983, more enjoyable. I have no recollection of asking for Prof Baldwin’s comments on a draft of my thesis, or even Dr Ziegler’s, but I think that I must have asked for Dr Ziegler’s comments.28. One of the ideas which Prof Baldwin suggested at one point was to try to make an intermediate with a chloro-[3]-cumulene group by a particular method. This was one of the few experiments I undertook which was successful. After I had demonstrated the principle, Dr Ziegler did a series of further experiments to explore the utility of the method. This work was subsequently published as a short paper, “A facile preparation of chloro-[3]-cumulenes”, J. Chem. Soc., Chem. Comm., 152-153, 1984. Although the named authors of the paper were myself, Prof Baldwin and Dr Ziegler, so far as I recall, I was not involved in writing or submitting the paper, which I note was received by the journal on 3 November 1983. I presume it was written by Dr Ziegler.29. My last contact with Prof Baldwin while at Oxford was a short interview to mark the conclusion of my Part II work at around the time I presented my thesis. Prof Baldwin offered me a place as a DPhil student despite the fact that I was predicted to receive (and did receive) a Second Class degree, but I declined this offer. After leaving Oxford in June 1983, I pursued a career in the law.30. While I was at Oxford, I also attended a course of lectures given by the then Dr Steve Davies, later Prof Baldwin’s successor as Waynflete Professor. My recollection is not very clear, but I think that this was in my first year and that the lectures were relatively introductory lectures in organic chemistry. I also believe that at some point during the four years I had some contact with Dr Davies outside the context of those lectures, When the present application was first intimated in mid September, I thought Dr Davies must also have been a member of Prof Baldwin’s research group at the time. This has since been corrected by Prof Davies, and I now realise that it could not have been the case. I am unable now to recollect in what context I had contact with Dr Davies (if indeed this memory is accurate at all).31. It has recently occurred to me that I may have met Prof Baldwin once since leaving Oxford. In September 2005 Magdalen College held a dinner for alumni chemists to celebrate the retirement of Prof Baldwin and of two of the college tutors who had taught me during Part I. I attended the dinner. I am not sure whether I spoke to Prof Baldwin on that occasion, but if I did, it was only briefly during pre-dinner drinks.32. I am aware that Prof Baldwin has given expert evidence in at least two cases in the Patents Court (Monsanto Co v Merck & Co Inc [2000] RPC 709 and SmithKline Beecham plc’s Patent (No 2) [2002] EWHC 2573 (Pat), [2003] RPC 33), but I was not involved in those cases in any capacity. “

The Judgment of Arnold J

[18]In his judgment under appeal the Judge, having set out the background and described the role of expert witnesses in patent actions and the applicable principles for recusal on the basis of apparent bias, turned to the merits of Lundbeck’s application. He said (at [54]) that he was entirely satisfied in his own mind that his past connection with Professor Baldwin would not affect his assessment of Professor Baldwin’s evidence. He said that what matters, however, is not what he thought, but what the fair-minded informed observer would think. He then turned to consider the factors which such an observer would take into account. He addressed those in paragraphs [56] – [68] of his judgment under the following headings: “the overall context”, “Professor Baldwin’s status as an expert witness”, “the importance of Professor Baldwin’s evidence”, “the nature and extent of [the Judge’s] past connection with Professor Baldwin”, “the passage of time and [the Judge’s] change in status”, “the nature and extent of [the Judge’s] connection with Professor Davies”, “Professor Davies’ status as an expert”, “specific aspects of the present case”, “the judicial approach”, “analogies”, and “conclusion”.[19]I do not propose to lengthen this judgment unduly by quoting all of those paragraphs. The following is a brief summary of the principal elements of the Judge’s reasoning. The Judge observed that Professor Baldwin will be subject to the obligation of an expert witness, under CPR Part 35, Practice Direction 35 – Experts and Assessors – and the Protocol for the Instruction of Experts to Give Evidence in Civil Claims, to provide objective, unbiased opinions on matters within his expertise, and that the question for the court to assess will be the extent to which Professor Baldwin’s opinions reflect the common general knowledge and perceptions of the notional skilled person, not whether they are genuinely held or scientifically correct. He said that Professor Baldwin supervised, but not closely, a research project lasting less than a year which the Judge had conducted as part of his degree course. That research had led to the publication of a short Paper in the joint names of Professor Baldwin, Dr Ziegler and himself but the Judge was not involved in writing or submitting the Paper and most of the work it reported was carried out by Dr Ziegler. The Judge said that the fair-minded and informed observer would note that a little over 30 years have passed since his association with Professor Baldwin and that in that time he had become successively a barrister, Queen’s Counsel and a High Court judge. The Judge said, that as a judge assessing a witness, he would have a considerable measure of authority over Professor Baldwin. He observed that he had also been educated as a student by Professor Steve Davies, who is to be called as an expert witness by Lundbeck on the same issue as is to be addressed by Dr Baldwin, and who is Professor Baldwin’s successor as the Waynflete Professor of Chemistry at Oxford University. He said that this is not a case in which there is a disparity in the authority of the respective experts.[20]The Judge said that the fair-minded and informed observer would appreciate that the general training and experience of English judges in the practice of the law and in acting judicially equips them to identify and combat their own cognitive biases. He said that a judge of five years’ standing like himself has considerable expertise in objectively assessing the evidence of the witnesses and, specifically, the assessment of evidence of expert witnesses in patent actions. The Judge concluded that, taking into account those and other factors he mentioned in his judgment, he was in no real doubt that a fair-minded and informed observer would not conclude that there was a real possibility of the Judge being subconsciously biased in his assessment of Professor Baldwin’s evidence by reason of the Judge’s past association with him.[21]Finally, the Judge rejected Resolution’s further contention that Lundbeck had, in any event, waived any objection of apparent bias on the part of the Judge by Resolution’s conduct between 14 March and 11 September 2013. He said that, although Lundbeck had all the information it needed by 2 July 2013 and did not raise any objection to the Judge hearing the trial until 11 September 2013, in the end he was not persuaded that Lundbeck’s actions were sufficiently unequivocal to amount to a waiver. Resolution has not challenged that part of the Judge’s judgment on this appeal.

The Appeal

[22]Mr Gordon began his submissions with an acknowledgement that the test of apparent bias is well established, namely whether the fair-minded and informed observer would conclude that there is a real possibility of bias. He submitted that the following four concepts have a particular resonance in the present case:(1) justice must not only be done but be seen to be done;(2) that principle trumps any practical difficulties arising from, for example, lack of judicial resources;(3) if there is any doubt about the appearance of bias, the court must err on the side of caution, particularly where the trial has not yet begun;(4) apparent bias can take many forms, but the most insidious is subconscious bias.[23]Mr Gordon submitted that in the present case the critical issue is the link between that precautionary principle and subconscious bias. He submitted that, in examining that link, the important questions are whether there are material factors to suggest to the independent observer that Professor Baldwin exercised influence at any time in the past and, if so, whether other factors will have removed a real possibility of that influence leading to subconscious bias.[24]Mr Gordon laid considerable weight on the reasoning and decision in Lawal v Northern Spirit Limited [2003] UKHL 35, [2003] ICR 856. The issue in the House of Lords in that case was whether there was a real possibility of the two lay members of the Employment Appeal Tribunal (“the EAT”) being subconsciously biased in favour of the submissions of a barrister, representing the employers, who was also a Recorder and in that capacity had sat as a part-time judge in the EAT with one of the two lay members. The House of Lords, concluded that there was a real possibility of subconscious bias and that the practice permitting such appearance by counsel in such circumstances should be discontinued.[25]Mr Gordon submitted that Lawal is in the same territory as the present appeal, namely as illustrative of the proposition that past “additional authority” exerted by one person over another can raise a real possibility of subconscious bias. More specifically, Mr Gordon contended that Lawal is analogous to the present case because both cases concern the possibility of a tribunal being subconsciously biased by virtue of a former relationship with a person to whom the tribunal would be looking for guidance in the subject in question – in Lawal the law, and in the present case organic chemistry – such that there is a perception of a risk that the arguments of that person might be preferred over the arguments of others.[26]Mr Gordon also relied upon the use made of analogies by the House of Lords in Lawal [15] to [18] (Lord Steyn giving the judgment of the Appellate Committee). He said there is a useful analogy in the present case, which the Judge had been wrong to reject, namely that Oxford University’s Regulations would have prohibited Professor Baldwin from assessing a doctoral thesis of the Judge due to his role as supervisor and their co-authorship of the Paper. Lundbeck’s case is that the Regulations suggest that a relationship such as that which existed between the Judge (as a student) and Professor Baldwin would mean that there was insufficient objectivity and apparent fairness for the latter to evaluate the former’s work.[27]Mr Gordon submitted that the present case is stronger than Lawal because that was a case concerning the relationship between the members of a tribunal and an advocate whereas the present case concerns the Judge’s assessment of the evidence of a witness. Mr Gordon emphasised that such an assessment is not merely related to the Judge’s evaluation of the truthfulness of a witness but in the present case also to the cogency of an expert’s opinion.[28]Mr Gordon emphasised that the disqualification of a judge for apparent bias is not a discretionary matter for the judge, but depends on an assessment which an appellate court is well able to conduct for itself. He cited, in that connection, AWG Group Limited v Morrison [2006] EWCA 6, [2006] 1 WLR 1163, at [20] (Mummery LJ).[29]Mr Gordon said that Baldwin’s Rules are central to the issues in this case; and the genuine concern of Lundbeck is that the Judge’s view of them may be influenced by his historic relationship with Professor Baldwin. In that connection, Mr Gordon emphasised the following factors. He acknowledged that the attendance of the Judge at lectures delivered by Professor Baldwin was not exceptional. On the other hand, he laid importance on the fact that the Judge made a positive decision to have Professor Baldwin as his Part II supervisor, and so effectively joined Professor Baldwin’s research team, just five years after the publication of Baldwin’s Rules. Mr Gordon also laid emphasis on the fact that the Judge, as a Part II student, had conducted a successful experiment that was in due course the subject of the published Paper which I have mentioned and for which his contribution was acknowledged by Professor Baldwin by being named as a co-author. Mr Gordon considered that it was significant that Professor Baldwin offered the Judge a place as a DPhil student and that the Judge had been invited to attend, and did attend, a retirement dinner for Professor Baldwin and two other tutors organised by Magdalen College, Oxford University, in September 2005.[30]As an indication of the continuing influence of those student years and the possibility of subconscious bias, Mr Gordon pointed to the following comments by

the Judge doing the hearing on 15 October 2013, as recorded in the transcript:

“MR JUSTICE ARNOLD: It is a more particularised way of putting what one might label the mentor point because going back to what I was saying earlier, the Baldwin rules are about stereoselectivity in SN2 reactions and one of the key areas of differences in the case is whether – I do not think it is in dispute that the skilled person in the art would have been aware of the Baldwin rules in 1988. They were famous. Everybody knew about them. But the question is, what the notional person skilled in the art, armed with the Baldwin rules and the problem at hand would conclude.”
[31]Mr Gordon focused on the Judge’s statement that Baldwin’s Rules were “famous”. Mr Gordon said that was likely to be in dispute. Mr Gordon also submitted that the Judge’s observation that Baldwin’s Rules were “famous”, coupled with his words “armed with Baldwin’s Rules”, suggested a conclusion that Baldwin’s Rules were indeed a basis for some further positive action on the part of the notional skilled person.[32]Mr Gordon referred to the expert evidence of Professor Davies on this aspect, and specifically the following passages in his report:
“86. While I believe that the average skilled person would know that stereoelectronics mattered in this reaction …, in the context of an experimental project, such as the synthesis of the enantiomers of citalopram, the average skilled person is unlikely to have spent time considering this. Baldwin’s Rules and the papers from which they derive are not the sort of information that the average person skilled in 1988 would have in their head – they would not have a recollection of the individual rules themselves, nor would they have thought them worthwhile to review in the context of such a project. In practice, the way the skilled person would work would be to look for analogous reactions reported in the literature and, for reasons set out below in paragraphs 98 to 103 in the Annex to this report, they would find none. 87. In any event, had the skilled person considered them in the context of the project in hand, they would see that Baldwin’s Rules do not even apply to this ring closure. The ring closure in the diol system involves an SN2 nucleophilic substitution reaction at a tetrahedral carbon atom. Only Baldwin’s Rule 1 addresses tetrahedral systems, and is therefore the only one of the rules that could apply to SN2 nucleophilic substitution reactions. Baldwin’s Rule 1 is clearly intended to apply to saturated systems and not unsaturated systems. If the skilled person was aware of Baldwin’s paper, they would know this and not take anything of use to this system from them.”
[33]Mr Gordon submitted that there were no factors negativing the persistence of Professor Baldwin’s influence over the Judge or, rather, such as to leave no real doubt as to the possibility of such persistent subconscious influence. In that connection, he addressed and countered the Judge’s reliance on such matters as the significance of the passage of time, the reversal of the positions of authority of the Judge and Professor Baldwin, Professor Baldwin’s personal experience as an expert witness, the specialist nature of patent disputes, the fact that in the field of disputed patent revocation many of the participants are known to each other, the Judge’s general training and experience as a judge, and the rules surrounding the giving of expert evidence. Mr Gordon submitted that the fair-minded observer would not be swayed by the first three of those matters and would regard the last four as irrelevant.[34]Mr Gordon also emphasised that in the present case the Patent stands or falls by the expert evidence as to the situation in 1988, not long after the Judge ceased to be an undergraduate.

Discussion

[35]The following principles relevant to this application are clear. First, the test of apparent bias is whether the fair-minded and informed observer, having considered the facts, would conclude that there is a real possibility that the tribunal was biased: Porter v Magill [2001] UKHL 67, [2002] AC 357 at [103] (Lord Hope). There is no difference between the common law test of bias and the requirements of an independent and impartial tribunal under Article 6(1) of the European Convention of Human Rights (“the Convention”): Lawal at [14] (Lord Steyn). Secondly, underlying both Article 6 of the Convention and the common law principles is the fundamental consideration that justice should not only be done but should manifestly and undoubtedly be seen to be done: R (McCarthy) v Sussex Justices [1924] 1 KB 256, 259. Thirdly, the fair-minded and informed observer is not unduly sensitive or suspicious, but neither is he or she complacent: Helow v Secretary of State for the Home Department [2008] UKHL 62, [2008] 1 WLR 2416, at [2] (Lord Hope). Fourthly, the facts and context are critical. Each case turns on an intense focus on the essential facts of the case: Man O’ War Station Ltd v Auckland City Council [2002] UKPC 28 at [11] (Lord Steyn). Fifthly, if the fair-minded and informed observer would conclude that there is a real possibility that the tribunal will be biased, the judge is automatically disqualified from hearing the case. The decision to recuse in those circumstances is not a discretionary case management decision reached by weighing various relevant factors in the balance. Considerations of inconvenience, cost and delay are irrelevant: AWG Group Ltd at [6] (Mummery LJ).[36]In addition to those well established points of principle, I would add the following observations. The test is “a real possibility” of bias, whether subconscious or otherwise. Lundbeck’s skeleton argument describes that test as “a necessarily low threshold”. While the test is certainly less rigorous than one of probability, it is a test which is founded on reality. The test is not one of “any possibility” but of a “real” possibility of bias.[37]As Lord Steyn observed in Lawal at [15], analogies may sometimes be of assistance. On the other hand, they must be viewed with care and caution. Cases of subconscious bias ultimately turn on the particular facts of the case. An analogy will only have value if the factual situation is sufficiently comparable to enable a compelling link to be made with the case in hand.[38]Mummery LJ in AWG Group Ltd at [9] has pointed to the practical difference between an objection to the judge based on facts discovered during the course of, or only at the end of, the hearing and a situation, such as the present one, where the objection is taken before the hearing has begun. In the latter situation, as Mummery LJ observed, there is scope for the sensible application of the precautionary principle, that is to say prudence naturally leans on the side of being safe rather than sorry. Indeed, as was observed in Locabail (UK) v Bayfield Properties [2000] 1 All ER 65 at [16], judges routinely take care to disqualify themselves in advance of any hearing in any case where a personal interest could be thought to arise. The Judge himself said at [50] of his judgment that he has a strong inclination to accede to an application to recuse himself without further ado. The test, however, remains the same whether the objection of bias or apparent bias is made before or after a trial.[39]The precautionary principle is a sensible one in view of the obvious practical complications if there is an appeal from a refusal to recuse or if there is a challenge made on the basis of apparent or actual bias at the end of the case. The overriding objective that justice should be seen to be done and of the need to maintain the confidence of society in general, and of the parties in particular, in the administration of justice also promote a disposition of a judge to accede to a recusal application when it is made by a party’s legal advisors.[40]It is important, nonetheless, to distinguish between a pragmatic precautionary approach and the application of the test itself. If a fair-minded and informed observer, having considered the facts, would not conclude that there is a real possibility that the tribunal will be biased, then the objection to the judge must fail even if that leaves the applicant dissatisfied and bearing a sense that justice will not or may not be done. The increasing pressure on limited judicial resources, aptly reflected in the present case in the shortage of judges suited to try this complex patent action, may mean that the easy option of voluntary recusal, irrespective of the strict application of the legal test, may from time to time have limited scope.[41]The decision made by a judge as to whether or not to accede to an objection based on apparent bias is a multi-factorial decision. It is well established that an appellate court will normally be slow to interfere with a multi-factorial decision made by a judge: Assicurazioni Generali SpA v Arab InsuranceGroup, Practice Note [2002] EWCA Civ 1542, [2003] 1 WLR 577, at [16] ff. The same considerations do not apply, however, in the case of a refusal by a judge to disqualify himself or herself for apparent bias. I agree with the comments of Mummery LJ in AWG Group Ltd at [20] that, on the issue of disqualification, an appellate court is well able to assume the vantage point of a fair-minded and informed observer with knowledge of the relevant circumstances, and that the appellate court must itself make an assessment of all relevant circumstances and then decide whether there is a real possibility of bias. That approach is entirely appropriate since it is conventional for applications for recusal on the basis of apparent bias to be heard by the very judge in question. Neither side before us commented on the appropriateness of that convention.[42]As the judge noted, Patten LJ said in Re L-B (Children) at [22] that a judge faced with a recusal application on the ground of apparent bias should “explain in sufficient detail the scale and content of the professional and other relationship which is challenged on the application”. It is plainly consistent with the policy underlying Article 6(1) of the Convention and common law principles that, on such an application, the judge should provide to the parties relevant information. Such information, however, should not go beyond what is strictly necessary for a fair adjudication of the recusal application. I consider that the Judge in the present case went well beyond what was necessary. The consequence of an excessively wide factual disclosure is to enlarge the opportunity for speculative arguments about the inferences to be drawn and the consequences that follow from the facts disclosed. That observation must be borne in mind when I address Mr Gordon’s submissions about the factual context of the present case in the following paragraphs.[43]Against the background of those principles and matters, I turn to the facts of the present case. The first and most obviously striking feature is that the relationship between the Judge and Professor Baldwin was formed when the Judge was a university student and it came to an end when his undergraduate studies were completed some 30 years ago. Mr Gordon’s submissions were advanced on the basis that Professor Baldwin was in a position of authority and influence over the Judge in those student days and that such influence should be presumed to continue unless there were factors negativing that inference. That seems to me to be an entirely artificial approach in the present case where the circumstances of the original relationship arose in a specific and limited context so very long ago and which bears no comparison whatever with the situation in which the Judge will be trying a High Court action in which Professor Baldwin will be giving expert evidence.[44]The factual context is critical. Lundbeck accepts that it irrelevant that the Judge attended lectures given by Professor Baldwin. In conducting his Part II research project the Judge was part of a large research group of 45 to 50 people. He sought advice and guidance primarily from two post-doctoral researchers in that group, Dr Kelly and Dr Ziegler. Although the Judge was named as co-author of the Paper mentioned above, he does not recall being involved in writing or submitting the Paper. In the intervening 30 years there has been no personal or professional contact between the Judge and Professor Baldwin other than the Judge’s attendance in September 2005 at a retirement dinner for Professor Baldwin and two other college tutors who had taught the Judge during his undergraduate years. The Judge is not even sure whether he spoke to Professor Baldwin on that occasion. Further, the Judge, while an undergraduate, also attended lectures given by Professor Davies, Lundbeck’s expert, who succeeded Professor Baldwin as Waynflete Professor and whose eminence the Judge acknowledges.[45]Mr Gordon relied heavily upon the decision and reasoning in Lawal as an analogous example of a situation where there was a real possibility of subconscious bias arising out of a former and different relationship. I do not agree that Lawal provides a useful analogy. That case was concerned with the continuing possible influence over the lay members of a tribunal of an advocate who had previously sat with those lay members as a part-time judge. In the first place, the original relationship of influence in that case was very recent (viz. within the previous 12 months). That bears no relationship whatever to the 30 years gap in the present case. Secondly, the persistent potential influence in Lawal was of a part-time judge over lay members. In the present case, the real possibility of subconscious bias is said to apply to a High Court judge of five years’ standing, who previously sat as a deputy High Court judge and for many years before that was in private practice as a barrister. Mr Gordon submitted that the difference between those situations is irrelevant. I do not agree.[46]I entirely accept that neither the judicial oath to “do right by all manner of people, after the law and usages of this realm, without fear or favour, affection or ill-will” nor judicial experience and training, including the pervasive and persistent ethos of the independence of the judiciary, can wholly insulate even the most rigorous and fair-minded judge from subconscious bias. The fair-minded observer would be aware of that possibility: Helow at [2] (Lord Hope). That is not to say, however, that the fair-minded and informed observer would wholly discount the matters of judicial training, experience and ethos. Taken to their logical conclusion, Mr Gordon’s submission and reliance on Lawal would preclude a judge from hearing a case in which his former pupil master or regular instructing solicitors were acting for one of the parties, or a deputy High Court judge from ever hearing a case in which a more senior member of his or her chambers was acting for one of the parties.[47]The present case might be different if there was some specific continuing link between the Judge’s studies under Professor Baldwin at university and the science involved in the present case, but there is none. There is nothing to indicate that the present dispute will turn on the subject matter of Professor Baldwin’s lectures attended by the Judge or the Paper co-authored by the Judge mentioned above.[48]As I have said, Mr Gordon drew attention to the passage in the transcript of the hearing on 15 October 2013, in which the Judge is recorded as saying that it is not in dispute that the notional skilled person would have been aware of Baldwin’s Rules in 1988 and that they were famous, and that the question is what the notional person skilled in the art “armed with Baldwin’s Rules” and the problem at hand would have concluded. I have also set out the passage in the expert evidence of Professor Davies, for Lundbeck, in relation to that aspect. I pressed Mr Gordon in his reply submissions as to precisely what Lundbeck’s point is on this aspect. He said that there is a crucial difference between knowing about Baldwin’s Rules and using the Rules for further action and that is the issue which is in contention and on which there is a real possibility of subconscious bias on the part of the Judge.[49]It is to be noted that there was absolutely no reaction by Lundbeck’s counsel in response to the statement of the Judge at the hearing of 15 October 2013 now relied upon. Mr Gordon submitted that what the Judge said on that occasion would give rise to “a non fanciful concern on the part of the informed observer”. I do not consider that to be the same as the test of “real possibility of bias”. Whether or not it is, I do not consider that the Judge’s comments could possibly give rise to any concern on the part of the fair-minded and informed observer.[50]It is common ground that Baldwin’s Rules were well known at the relevant time. In Generics (UK) Ltd v H. Lundbeck AS [2007] EWHC, which I have mentioned earlier, and in which Professor Davies again acted as the expert witness for Lundbeck, Kitchin J said at [85]:
“Finally, the existence of what had become known as Baldwin’s rules were well known to organic chemists in 1988. How the skilled person would apply those rules was, however, hotly disputed.”
That seems to me to be no different from what the Judge said on 15 October 2013. I do not regard the word “famous” as being anything other than an appropriate substitute for “well-known”. Nor do I agree that the words “armed with Baldwin’s Rules” shows a subconscious disposition to give an answer to the question proposed by the Judge favourable to Resolution. It is relevant to note that at [57] of his judgment the Judge emphasises that the question for the court to assess “will be the extent to which Prof Baldwin’s opinions reflect the common general knowledge and the perceptions of the notional skilled person, not whether they are genuinely held or even scientifically correct”. In the course of his oral submissions Mr Gordon confirmed that was indeed a correct statement of the relevance of Professor Baldwin’s evidence. All this is consistent with there having been no immediate reaction by Lundbeck’s counsel to what the Judge said on 15 October 2013.[51]Once those matters are out of the way, there is simply nothing left that could give rise to any real concern on the part of the fair-minded and informed observer. I do not consider in the circumstances of the present case that the Oxford University Regulation which would have precluded Professor Baldwin from assessing a doctoral thesis of the Judge, in view of their relationship as supervisor/supervisee or their co-authorship of the academic Paper, is of any relevance whatever to the interaction between the Judge and Professor Baldwin as an expert witness some thirty years later.[52]The Judge has given entirely cogent and persuasive reasons why the fair-minded and informed observer would not consider it significant that the priority date of the Patent, 14 June 1988, was only five years after the Judge presented his Part II thesis, or that Baldwin’s Rules were formulated by Professor Baldwin in papers published about five years before the Judge started his Part II project, or that stereo chemistry was mentioned in the Paper published jointly by the Judge, Professor Baldwin and Dr Ziegler to which I have referred above: see paras [63], [64] and [65] in the Judge’s judgment.

Conclusion

[53]For all those reasons, I would refuse the appeal. Lady Justice Hallett[54]I agree. Lady Justice Sharp[55]I also agree.

Cited in 19 later judgments

and 10 more of the most senior