Cairnstores Ltd & Generics (UK) Ltd v Aktiebolaget Hässle

A complaint that a judge’s interventions during cross-examination caused apparent bias must be assessed as a claim of actual unfairness where no extraneous prejudice is alleged. The appellate court must consider the proceedings as a whole and all relevant circumstances. The nature, timing and extent of the interventions matter, but differences in their volume or attitude do not alone establish unfairness. Proper questions which clarify an inconsistency or seek a clear explanation from an experienced expert witness will not ordinarily render a trial unfair.

Cairnstores Ltd and Generics (UK) Ltd brought conjoined actions to revoke Hässle’s United Kingdom European patents for an oral omeprazole preparation. Laddie J held both patents obvious and invalid.

Hässle appealed principally on the ground that the judge’s interventions during the cross-examination of its expert, Dr Rees, created apparent bias and deprived it of a fair trial. It did not pursue its challenge to obviousness if that principal ground failed. The central issue was whether the nature and extent of the judicial interventions rendered the proceedings unfair.

Appeal dismissed. The court held that Hässle had received a fair trial.

1. The undisputed principles concerning apparent bias did not determine the appeal. Hässle did not allege extraneous prejudice or that an appearance of bias disclosed a real possibility of bias. Its substantive complaint was that the interventions had made the trial unfair. The correct inquiry was therefore whether the proceedings were in fact unfair, assessed in their entirety and in all the relevant circumstances. That approach accorded with Jaffray v Society of Lloyd’s [2002] EWCA Civ 1101 and C.G. v The United Kingdom [2002] 34 EHRR 31.

2. The court treated the right to a fair trial, recognised by Article 6 of the European Convention on Human Rights, and the serious-irregularity ground in CPR 52.11(3)(b) as the relevant procedural framework. It considered the trial as a whole, rather than asking whether a disappointed litigant would perceive unfairness.

3. The judge’s questions to Dr Rees were more extensive than those asked of Dr Rue, and there was some difference in attitude. Those matters did not establish oppression, unfairness, or a loss of detached judgment. The interventions challenged by Hässle were temperate. One properly sought to resolve apparently inconsistent expert evidence. Another asked for a clear explanation of why the context of sugar coating affected teaching about separating reactive components.

4. Although some questions did more than clarify or amplify an earlier answer, their nature and context did not make the trial unfair. Dr Rees was an experienced expert who should have been able to explain the reasoning in his reports, and his answers did not reveal the alleged pressure. The court therefore rejected the appeal. It left open the alternative submission that Hässle had waived any objection by failing to raise it at trial.

• Court of Appeal (Civil Division) — dismissed Hässle’s appeal and upheld the revocation decision: [2002] EWCA Civ 1504.
• Chancery Division (Laddie J) — on 6 March 2002 held both patents obvious and invalid in conjoined revocation actions. No citation is stated in the judgment.