Resolution Chemicals Ltd v H Lundbeck A/S

An application for recusal on grounds of apparent bias is determined objectively. The question is whether the fair-minded and informed observer, having considered all the relevant circumstances, would conclude that there was a real possibility of bias. The assessment is highly fact-sensitive. Relevant factors may include the nature and extent of the judge’s relationship with a witness, the witness’s role, the passage of time, changes in the parties’ relative status, the specialist context of the litigation and the judge’s experience.

Judicial confidence that the judge is not biased is relevant to the circumstances but does not determine the issue. An objection may be waived only if the waiver is voluntary, informed and unequivocal.

Resolution sought revocation of Lundbeck’s supplementary protection certificate for escitalopram, alleging invalidity of the underlying patent. The claim was listed before Arnold J because of the technical complexity of the patent dispute and the unavailability or disqualification of other specialist judges.

Lundbeck applied to vary the directions so that Arnold J would not try the claim. The application relied on Arnold J’s past academic connection with Professor Sir Jack Baldwin, who had supervised part of Arnold J’s undergraduate research and was to give expert evidence for Resolution. Resolution opposed the application on the merits and contended that Lundbeck had waived its objection.

1. Application dismissed. The court applied the objective test stated in Porter v Magill [2001] UKHL 67; [2002] 2 AC 357: whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.
2. The assessment had to be made from the time the judge first became seized of the case, and the relevant circumstances had to be considered in their overall context. The passage of time weakened the objection where other things were equal. The specialist nature of patent litigation, the frequency with which judges and experts encounter one another, and the role of experts as objective witnesses whose reasons matter more than their conclusions were material considerations.
3. Arnold J’s connection with Professor Baldwin consisted principally of relatively limited supervision of an undergraduate research project for less than a year, more than 30 years earlier. Professor Baldwin would be one of several expert witnesses, and the court’s task would be to assess the reasons for his opinions and their relationship to the skilled person’s knowledge and perceptions. Arnold J’s later judicial experience and changed position relative to Professor Baldwin were also relevant.
4. The fair-minded and informed observer would not regard the technical overlap between the historical research and the patent issues, or the fact that Professor Baldwin had formulated relevant scientific principles, as significant enough to establish a real possibility of subconscious bias. The judge’s own belief that he would be impartial was not determinative, although awareness of possible cognitive bias formed part of the circumstances.
5. An apparent-bias objection could be waived only by conduct that was voluntary, informed and unequivocal. Lundbeck had sufficient information by 2 July 2013, but its subsequent silence and participation in proceedings were not sufficiently unequivocal to establish waiver. The application therefore failed on the merits, without it being necessary to decide waiver against Lundbeck.