Resolution Chemicals Ltd v H Lundbeck A/S

Apparent bias arises where a fair-minded and informed observer, having considered the relevant facts, would conclude that there is a real possibility that the tribunal is biased. The possibility must be founded in reality. A merely fanciful or non-specific concern is insufficient.

A precautionary approach may favour recusal before trial, but it does not lower or alter the legal test. If the test is met, disqualification is automatic and inconvenience, cost and delay are irrelevant. If it is not met, the objection must fail. An appellate court must assess the relevant circumstances for itself.

Resolution Chemicals Ltd sought revocation of a supplementary protection certificate for escitalopram held by H Lundbeck A/S, alleging that the underlying patent was invalid for obviousness. Professor Sir Jack Baldwin, a former university research supervisor of Arnold J, was to give expert evidence for Resolution on an issue involving Baldwin’s Rules.

Arnold J refused Lundbeck’s application that he recuse himself. Their academic association had been limited, had ended about 30 years earlier and had involved no material subsequent contact. Lundbeck appealed, contending that the association created a real possibility of subconscious bias in the judge’s assessment of Professor Baldwin’s evidence.

The central issue was whether a fair-minded and informed observer would conclude that the historic relationship created a real possibility of bias.

1. Appeal dismissed unanimously. The fair-minded and informed observer would not conclude that Arnold J’s historic association with Professor Baldwin created a real possibility of subconscious bias.

2. The governing test was whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased. The observer is neither unduly sensitive or suspicious nor complacent. The inquiry requires an intense focus on the essential facts and context. The test is less demanding than probability, but it concerns a possibility founded in reality rather than any conceivable or fanciful possibility: Porter v Magill [2001] UKHL 67 and Helow v Secretary of State for the Home Department [2008] UKHL 62.

3. If the observer would find a real possibility of bias, disqualification is automatic. Recusal is not a discretionary case-management decision, and inconvenience, cost and delay are irrelevant. A precautionary disposition may sensibly favour recusal before trial, but it does not alter the governing test. If that test is not satisfied, the objection must fail even though the applicant remains concerned.

4. An appellate court must assess the circumstances for itself. The ordinary reluctance to interfere with a trial judge’s multifactorial decision does not apply to apparent-bias determinations because the appellate court can itself adopt the observer’s standpoint.

5. Lawal v Northern Spirit Ltd [2003] UKHL 35 was not a useful factual analogy. It concerned an advocate’s recent judicial relationship with lay tribunal members. Here, the supervisor-student relationship arose in a limited context about 30 years earlier. There had been no material personal or professional contact since then, and the judge’s training, experience and judicial ethos were relevant matters which the informed observer would not wholly discount.

6. There was no continuing scientific link between the former research relationship and the disputed subject matter. The judge’s description of Baldwin’s Rules as famous and his reference to the skilled person being armed with those rules conveyed no predisposition. In context, those observations merely recognised that the rules were well known while leaving their application disputed.

7. A judge facing a recusal application should disclose sufficient detail about the challenged relationship to permit fair determination. The disclosure should not extend beyond what is strictly necessary, since excessive disclosure invites speculative inferences.

1. Court of Appeal (Civil Division): Dismissed Lundbeck’s appeal and upheld the refusal of the recusal application: [2013] EWCA Civ 1515.
2. High Court, Chancery Division: Arnold J refused Lundbeck’s application that he recuse himself from the forthcoming patent trial. No citation for that recusal judgment is stated.