In re Medicaments and Related Classes of Goods (No 2)

Apparent bias is assessed in two stages. The court first ascertains all the circumstances bearing on the allegation. It then asks whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility, or real danger, that the tribunal was biased. Those expressions have the same meaning.

A disputed explanation from the decision-maker is assessed from that observer’s viewpoint. The reviewing court need not determine whether it is true. A tribunal member’s attempt to obtain employment from a firm providing central disputed expert evidence may require recusal. If that member has already discussed the issues with the remaining members, the whole tribunal may also have to stand down.

The Director General of Fair Trading applied to the Restrictive Practices Court to discharge a 1970 order exempting branded over-the-counter medicaments from the statutory prohibition on resale price maintenance. The application was opposed by two trade associations representing manufacturers and retailers.

During the trial, Dr Penelope Rowlatt, the economist member of the court, approached Frontier Economics about possible employment. Frontier was providing the Director General’s principal evidence about the economic consequences of abolishing resale price maintenance. The trade associations sought the recusal of both Dr Rowlatt and the whole court.

The Restrictive Practices Court dismissed both applications. The Court of Appeal granted permission, heard the appeal and allowed it. The central questions were the correct test for apparent bias and whether Dr Rowlatt’s disqualification also required the other members of the tribunal to stand down.

Appeal allowed unanimously. Lord Phillips MR delivered the judgment of the court, comprising Brooke LJ and Robert Walker LJ.

1. The court made a modest adjustment to the test stated in Reg v Gough [1993] AC 646. After ascertaining all circumstances bearing on the allegation of bias, the court must ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility, or real danger, that the tribunal was biased. Real possibility and real danger have the same meaning.

   The adjustment was required after taking account of the jurisprudence concerning article 6 of the European Convention on Human Rights. The objective formulation protects public confidence in the administration of justice without requiring the reviewing court to make a potentially damaging finding about whether the decision-maker was actually or unconsciously biased.

2. The material circumstances include any explanation given by the decision-maker about their knowledge or appreciation of events. If the explanation is disputed, the reviewing court need not determine its truth. It must consider whether the fair-minded observer would nevertheless perceive a real danger of bias. The Restrictive Practices Court therefore erred by deciding for itself whether Dr Rowlatt’s account was credible.

3. A fair-minded observer would be concerned that Dr Rowlatt’s wish to work for Frontier might incline her, consciously or unconsciously, to regard its expert evidence as more reliable than that of its rivals. The observer would not be convinced that all future employment prospects had been extinguished. The difficulty of accepting her explanation that she had forgotten Frontier’s central role would augment rather than remove those concerns. There was consequently a real danger that she could not appraise Frontier’s evidence objectively and impartially. She should have recused herself.

4. The trial had reached an advanced stage, and Dr Rowlatt must have discussed the economic issues with the other two members. Her disqualification therefore inevitably required the whole Restrictive Practices Court to stand down.

The appeal was allowed on both recusal applications. Costs were adjourned, and permission to appeal to the House of Lords was refused. The court did not reconsider the separate rules governing automatic disqualification for pecuniary interests.

1. Court of Appeal: Granted permission, heard the appeal and allowed it on both recusal applications. Reasons were delivered in [2000] EWCA Civ 350. Costs were adjourned and permission to appeal to the House of Lords was refused.
2. Restrictive Practices Court: On 17 November 2000, dismissed the applications for Dr Rowlatt and the whole court to recuse themselves. No citation for that judgment is stated.