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Microsoft word - resolution v lundbeck recusal judgment.doc

Neutral Citation Number: [2013] EWHC 3160 (Pat) IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
PATENTS COURT

THE HON MR JUSTICE ARNOLD
- - - - - - - - - - - - - - - - - - - - - Between :
RESOLUTION CHEMICALS LIMITED
Claimant
H. LUNDBECK A/S
Defendant
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Tom Weisselberg (instructed by Olswang LLP) for the Claimant
Richard Gordon QC and Stuart Baran (instructed by Wragge & Co LLP) for the Defendant
- - - - - - - - - - - - - - - - - - - - - Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic. THE HON MR JUSTICE ARNOLD
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MR JUSTICE ARNOLD :
I have before me what is in substance an application by the Defendant (“Lundbeck”) that I should recuse myself from hearing the trial of this claim. The application is strenuously opposed by the Claimant (“Resolution”). By the claim, Resolution seeks revocation of SPC/GB02/049 (“the SPC”) for escitalopram in the name of 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”). The claim was started on 7 November 2012. On 23 January 2013 Roth J made an order (“the Order”) which among other things gave directions for the trial of the claim. Paragraph 30 of the Order provided: “The trial of this action shall be listed on an expedited basis before Mr Justice Arnold if available on the earliest possible dated 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.” 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, whereas cases with a technical complexity rating of 1 to 3 may be listed before one of the other assigned judges of the Patents Court who do not have those attributes. At the time the Order was made, the two specialist judges were Floyd J (as he then was) and myself. Floyd J was debarred from hearing the case because (as Christopher Floyd QC) he had represented the claimants at the trial of a previous claim for revocation of the Patent which was heard by Kitchin J (as he then was). It is for this reason that the Order provided for the trial to be listed before me. Shortly afterwards, the matter was duly listed in a window commencing on 11 November 2013. Since then, Floyd J has been promoted to the Court of Appeal and replaced by Birss J. I have been informed by Birss J that he is unable to hear the case due to a conflict of interest. Formally, Lundbeck seeks a variation of paragraph 30 of the Order so that it provides that the action is listed for trial “not before Mr Justice Arnold”. The practical effect of the variation would be that the claim would have to be tried either by one of the non-specialist assigned judges of the Patents Court or by a specialist Deputy High Court Judge. The general background to the matter is set out in my judgment dated 12 April 2013 [2013] EWHC 739 (Pat) (an appeal from part of which was dismissed by a judgment of the Court of Appeal dated 29 July 2013 [2013] EWCA Civ 924) and in the THE HON MR JUSTICE ARNOLD
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judgment of Kitchin J in Generics (UK) Ltd v H. Lundbeck A/S [2007] EWHC 1040 (Pat), [2007] RPC 32. For the purposes of the present judgment, I will take those two judgments as read and summarise the background as shortly as I can. As explained in my previous judgment, 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 (“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 (“Bigler”). So far as the first ground is concerned, there are four steps in Resolution’s argument: it was obvious to seek to prepare the enantiomers of citalopram; one obvious way to achieve that was to seek to resolve a chiral precursor (or a derivative thereof) into its enantiomers and then convert those enantiomers stereospecifically into the enantiomers of citalopram; 884 discloses a route to racemic citalopram in which the precursor is the diol, and the skilled person would regard the diol as a good candidate for resolution into its enantiomers; the skilled person would expect to be able to convert the enantiomers of the diol stereospecifically to escitalopram and its enantiomer by an SN2 ring closure reaction. In the previous proceedings, Kitchin J accepted steps (i)-(iii), but not (iv). In relation to step (iv), he said that the crucial question was “whether it would have been obvious to the skilled person that the ring of the resolved diol could be closed without risking loss of stereochemistry”. He considered evidence relating to that issue from Dr Roger Newton for the claimants and from Professor Steve Davies for Lundbeck. Prof Davies was then, and remains, the Waynflete Professor of Chemistry at Oxford. Part of the disagreement between Dr Newton and Prof Davies concerned the applicability of Baldwin’s Rules, which were devised by Prof Davies’ predecessor as Waynflete Professor, Professor Sir Jack Baldwin FRS. In his judgment Kitchin J concluded that the approach of the person skilled in the art would have been in accordance with Prof Davies’ opinion. One of the applications which I dealt with in my previous judgment was an application by Lundbeck for summary judgment dismissing this ground of invalidity on the basis that it bore no real prospect of success. As explained in my previous judgment, Resolution contended that it had a real prospect of success because there was a substantial and weighty body of expert opinion (in addition to Dr Newton) which was contrary to the view of Prof Davies that was accepted by Kitchin J. In support of this contention, Resolution relied upon expert reports prepared for the purposes of foreign proceedings by three chemists, one of whom was Prof Baldwin. I concluded that Resolution’s contention did have a real prospect of success, and there was no appeal against that part of the judgment. THE HON MR JUSTICE ARNOLD
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It is not necessary for the purposes of this judgment to explain Resolution’s case based on Bigler. It is sufficient to note that: (a) this case was not advanced by the claimants at the trial before Kitchin J; (b) it involves desmethylcitalopram; (c) it depends in part upon experiments as well as expert evidence; and (d) I concluded that it had a real prospect of success, and so Resolution should be permitted to amend its statement of case to introduce it. Again, there was no appeal against that part of the judgment. During the course of the hearing of the applications which were the subject of my previous judgment, the following exchange took place between counsel for Resolution and myself on 14 March 2013: “MR TAPPIN: … we have an expert opinion of Professor Sir Jack Baldwin which he provided for the Canadian proceedings. I am sure my Lord knows Professor Baldwin, or knows of Professor Baldwin. MR JUSTICE ARNOLD: Well, more than that. MR TAPPIN: I rather thought that. I know which college my Lord went to. MR JUSTICE ARNOLD: He was my Part 2 supervisor. MR TAPPIN: Anyway, for present purposes I do not think that --- MR JUSTICE ARNOLD: I do not think that has any bearing on anything whatsoever, but it means I know who the man is.” Also during the course of that hearing, counsel for Lundbeck made the point that Resolution had not committed itself to calling Prof Baldwin (or either of the other two experts whose opinions it relied on). In response to this, counsel for Resolution said: “I cannot say at this stage that I will be calling Professor Baldwin, but I have no reason to think that he would not be prepared to give evidence.” In June 2013 Resolution disclosed documents which made it clear that Prof Baldwin had devised an experimental protocol on behalf of Resolution. On 2 July 2013 Resolution’s solicitors wrote to Lundbeck’s solicitors in the following terms: “You will be aware from the information provided in relation to the experiments that our client has been assisted by two experts. Professor Gerard Coquerel and Professor Sir Jack Baldwin, neither of whom were working in the pharmaceutical industry in 1988. In the previous case, the Court noted it was assisted by having expert input from someone in industry who had been involved in such issues at the relevant time. Our client therefore proposes calling a third expert to give evidence in THE HON MR JUSTICE ARNOLD
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relation to this aspect of the case. As such, the Order of Roth J dated 24 January 2013 would need to be amended to allow for a third expert to be called. If necessary our client will seek the Court’s permission to call a third expert at the hearing seeking an Order for further directions. Please confirm by return whether your client will consent to such an application.” On about 19 July 2013 Resolution made an application for permission to call a third expert. This application was supported by a witness statement made by Campbell Forsyth of Resolution’s solicitors on 19 July 2013 in which he stated: “18. For the purpose of the experiments it was necessary for Resolution to obtain protocols provided by two different experts, Professor Sir Jack Baldwin and Professor Gerard Coquerel. Professor Sir Jack Baldwin is an organic chemist and designed the protocol relating to steps 1, 2 and 5 of the experiments (synthesis of desmethylcitalopram and conversion of enantiomers of desmethylcitalopram to enantiomers of citalopram). Professor Gerard Coquerel is a physical chemist and designed the protocol relating to steps 3 and 4 of the experiments (resolution of desmethylcitalopram). In light of Lundbeck’s response to Resolution’s Notice of Experiments set out above it will be necessary to call both these experts to give evidence at the trial of this action on the nature of their instructions and the outcome of the experiments themselves. At present, Roth J’s Order for Directions dated 24 January 2013 provides that each party may only call two expert witnesses to give evidence at the trial of this action. However, both parties will need to call an expert to assist the Court in deciding the issue of whether a motive to resolve citalopram existed at the priority date of the Patent.” At a hearing on 30 July 2013 Norris J duly made an order by consent giving Resolution permission to call a third expert. At the same hearing he dealt with an application by Resolution for permission to rely upon some experiments out of time. On 6 September 2013 Resolution formally notified Lundbeck of the names of its expert witnesses as required by the Order, one of whom was Prof Baldwin. On 11 September 2013 Lundbeck’s solicitors wrote to me requesting that I recuse myself from hearing the trial of the claim on the grounds that my past connection with Prof Baldwin gave rise to a real possibility of apparent bias. This request was opposed by Resolution both on the merits and on the ground of waiver. Accordingly, Lundbeck issued the present application on 30 September 2013. The nature and extent of my connection with Prof Baldwin The core of the evidence filed by Lundbeck in support of its application consisted of (a) the transcript extract set out in paragraph 13 above, (b) some publicly available information about my curriculum vitae, (c) some general information concerning the THE HON MR JUSTICE ARNOLD
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Oxford University 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 paper referred to in paragraph 28 below and (e) a copy of the rules for the appointment of DPhil examiners at Oxford University. Resolution’s evidence in response included a letter from Prof Baldwin stating that he had no specific recollection of me and setting out his general practice with regard to the Part II students he supervised and his comments on the paper. When preparing for the hearing, I noted what Patten LJ said in Re L-B (Children) [2010] EWCA Civ 1118 at [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.” I therefore produced a note of my recollections which I supplied to the parties shortly before the hearing. I reproduce the contents of that note in the paragraphs 23-32 below. 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. I studied Natural Sciences (Chemistry) at Magdalen College, Oxford from 1979 to 1983. At that time, Prof Baldwin was the Waynflete Professor of Chemisty, 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). 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, THE HON MR JUSTICE ARNOLD
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while Dr Ziegler was pursing another. Prof Baldwin assigned me to explore some variants of the route Dr Ziegler was pursuing. 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.) 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. 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. 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. 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). THE HON MR JUSTICE ARNOLD
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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. 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 role of expert witnesses in patent actions Before proceeding further, I think it is important to set out the role of expert witnesses in patent actions. This was described by Jacob LJ in Technip France SA’s Patent [2004] EWCA Civ 381, [2004] RPC 46 as follows: The ‘man skilled in the art’ is invoked at many critical points of patent law. The claims of a patent must be understood as if read by that notional man—in the hackneyed but convenient phrase, the ‘court must don the mantle of the skilled man’. Likewise many questions of validity (obviousness, and sufficiency for instance) depend upon trying to view matters as he would see them. He indeed has statutory recognition—Arts 56, 83 and 100 of the EPC expressly refer to ‘the person skilled in the art’. It is settled that this man, if real, could be very boring—a nerd. Lord Reid put it this way in Technograph Printed Circuits Ltd v Mills & Rockley (Electronics) Ltd [1972] R.P.C. 346 at p.355: ‘… the hypothetical addressee is a skilled technician who is well acquainted with workshop technique and who has carefully read the relevant literature. He is supposed to have an unlimited capacity to assimilate the contents of, it may be, scores of specifications but to be incapable of a scintilla of invention. When dealing with obviousness, unlike novelty, it is permissible to make a ‘mosaic’ out of the relevant documents, but it must be a mosaic which can be put together by an unimaginative man with no inventive capacity.’ The no-mosaic rule makes him also very forgetful. He reads all the prior art, but unless it forms part of his background technical knowledge, having read (or learnt about) one piece of prior art, he forgets it before reading the next unless it can form an uninventive mosaic or there is a sufficient cross-reference that it is justified to read the documents as one. THE HON MR JUSTICE ARNOLD
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He does, on the other hand, have a very good background technical knowledge—the so-called common general knowledge. Our courts have long set a standard for this which is set out in the oft-quoted passage from General Tire & Rubber Co v Firestone Tyre & Rubber Co Ltd [1972] R.P.C. 457 at 482 which in turn approves what was said by Luxmoore J. in British Acoustic Films Ltd v Nettlefold Productions (1936) 53 R.P.C. 221 at 250. For brevity I do not quote this in full—Luxmoore J.'s happy phrase ‘common stock of knowledge’ conveys the flavour of what this notional man knows. Other countries within the European Patent Convention apply, so far as I understand matters, essentially the same standard. The man can, in appropriate cases, be a team—an assembly of nerds of different basic skills, all unimaginative. But the skilled man is not a complete android, for it is also settled that he will share the common prejudices or conservatism which prevail in the art concerned. None of the above is controversial. However, sometimes the requirement that the skilled man be uninventive is used by counsel for a patentee in an attempt to downgrade or dismiss the evidence of an expert called to say that a patent is obvious—‘my witness is more nerdlike than his’ is the general theme. I do not find this a helpful approach. It is frequently invoked and Mr Waugh Q.C. invoked it in this case in an effort to downgrade Rockwater's expert evidence on obviousness given by Professor Witz. Mr Waugh said his witness, Mr Nash, was more appropriately qualified than Professor Witz, and that the latter, because he had patents in his name, ‘was of an inventive turn of mind’. I must explain why I think the attempt to approximate real people to the notional man is not helpful. It is to do with the function of expert witnesses in patent actions. Their primary function is to educate the court in the technology—they come as teachers, as makers of the mantle for the court to don. For that purpose it does not matter whether they do not approximate to the skilled man. What matters is how good they are at explaining things. But it also is permissible for an expert witness to opine on an ‘ultimate question’ which is not one of law. I so held in Routestone Ltd v Minories Finance Ltd [1997] B.C.C. 180 and see s.3 of the Civil Evidence Act 1972. As regards obviousness of a patent Sir Donald Nicholls V.C. giving the judgment of the Court of Appeal in Mölnlycke AB v Procter & Gamble Ltd (No.5) [1994] R.P.C. 49 at p.113 was explicit on the point: ‘In applying the statutory criterion [i.e. as to whether an alleged inventive step was obvious] and making these THE HON MR JUSTICE ARNOLD
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findings [i.e. as to obviousness] the court will almost invariably require the assistance of expert evidence. The primary evidence will be that of properly qualified expert witnesses who will say whether or not in their opinions the relevant step would have been obvious to a skilled man having regard to the state of the art.’ But just because the opinion is admissible, ‘it by no means follows that the court must follow it. On its own (unless uncontested) it would be ‘a mere bit of empty rhetoric’ Wigmore, Evidence (Chadbourn rev) para.1920. What really matters in most cases is the reasons given for the opinion. As a practical matter a well-constructed expert's report containing opinion evidence sets out the opinion and the reasons for it. If the reasons stand up the opinion does, if not, not. A rule of evidence which excludes this opinion serves no practical purpose. What happens if the evidence is regarded as inadmissible is that experts' reports simply try to creep up to the opinion without openly giving it. They insinuate rather than explicate’ (Minories at p.188). Because the expert's conclusion (e.g. obvious or not), as such, although admissible, is of little value it does not really matter what the actual attributes of the real expert witness are. What matters are the reasons for his or her opinion. And those reasons do not depend on how closely the expert approximates to the skilled man.” It is for these reasons that it is possible for parties to call, as they frequently do, expert witnesses who are over-qualified. Where they do so, however, it may be necessary for the court to consider to the extent to which the skilled person would have approached the prior art with the same scientific rigour and clarity of mind as a particular expert: see e.g. Generics (UK) Ltd v Yeda Research & Development Co Ltd [2012] EWHC 1848 (Pat) at [102] (a point unaffected by the subsequent decision of the Court of Appeal [2013] EWCA Civ 925). Where an expert witness is the author of a prior art document, it is obvious that he may have some difficulty in explaining how the skilled person would have understood the document as opposed to the meaning he (the expert witness) intended. There was little dispute between counsel as to the applicable principles, which are now fairly well settled. THE HON MR JUSTICE ARNOLD
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The right to a trial by an independent and impartial tribunal is a fundamental right which is guaranteed both at common law and by Article 6(1) of the European Convention on Human Rights: “Article 6: Right to a Fair Trial
In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.” Neither a biased, nor an apparently biased, tribunal can properly be regarded as an “impartial” one as required by Article 6(1). Relevant bias may take one of several possible forms: Actual bias – where the tribunal is found, after inquiry, to have acted in a fashion which is in fact biased. Predetermination – is often treated as a subset of actual bias, though it is in fact more common than actual bias. Predetermination must be found to exist in fact, if it is to prompt a change in tribunal. This is not a test of apparent bias, but of real bias in fact. Apparent bias implied by operation of law – which may arise where, for example, a judge sits in his own cause. This results in immediate disqualification of the tribunal. Apparent bias which is apparent following inquiry – this may arise where, for example, a judge knows a witness. It requires no finding of bias in fact. The recognition of these different forms of bias reflects the famous statement of Lord Hewart CJ in R (McCarthy) v Sussex Justices [1924] 1 KB 256 at 259 that “it is … of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done”. It is only the final type which is in issue on the present application. The test of apparent bias to be applied in such a case is an objective test which was authoritatively stated by Lord Hope of Craighead in Porter v Magill [2001] UKHL 67, [2002] 2 AC 357 at [103] as follows: “The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.” As Lord Hope explained in Millar v Dickson [2001] UKPC D4, [2002] 1 WLR 1615 at [63]: “… As Lord Clarke said in Rimmer v HM Advocate (unreported) 23 May 2001, the question of impartiality, actual or perceived, has to be judged from the very moment when the judge or tribunal becomes first seized of the case. It is a THE HON MR JUSTICE ARNOLD
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question which, at least in a case of perceived impartiality, stands apart from any questions that may be raised about the character, quality or effect of any decisions which he takes or acts which he performs in the proceedings.” The nature and attributes of the “fair-minded and informed observer” were described by Lord Hope in Helow v Secretary of State for the Home Department [2008] UKHL 62, [2008] 1 WLR 2416 as follows: My Lords, the fair-minded and informed observer is a relative newcomer among the select group of personalities who inhabit our legal village and are available to be called upon when a problem arises that needs to be solved objectively. Like the reasonable man whose attributes have been explored so often in the context of the law of negligence, the fair-minded observer is a creature of fiction. Gender-neutral (as this is a case where the complainer and the person complained about are both women, I shall avoid using the word ‘he’), she has attributes which many of us might struggle to attain to. The observer who is fair-minded is the sort of person who always reserves judgment on every point until she has seen and fully understood both sides of the argument. She is not unduly sensitive or suspicious, as Kirby J observed in Johnson v Johnson (2000) 201 CLR 488, 509, para 53. Her approach must not be confused with that of the person who has brought the complaint. The ‘real possibility’ test ensures that there is this measure of detachment. The assumptions that the complainer makes are not to be attributed to the observer unless they can be justified objectively. But she is not complacent either. She knows that fairness requires that a judge must be, and must be seen to be, unbiased. She knows that judges, like anybody else, have their weaknesses. She will not shrink from the conclusion, if it can be justified objectively, that things that they have said or done or associations that they have formed may make it difficult for them to judge the case before them impartially. Then there is the attribute that the observer is ‘informed’. It makes the point that, before she takes a balanced approach to any information she is given, she will take the trouble to inform herself on all matters that are relevant. She is the sort of person who takes the trouble to read the text of an article as well as the headlines. She is able to put whatever she has read or seen into its overall social, political or geographical context. She is fair-minded, so she will appreciate that the context forms an important part of the material which she must consider before passing judgment.” As Lord Steyn said in Man O’War Station Ltd v Auckland City Council [2002] UKPC 28 at [11], “[t]his is a corner of the law in which the context, and the particular THE HON MR JUSTICE ARNOLD
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circumstances, are of supreme importance”. Among the relevant circumstances is the passage of time. As Lord Bingham of Cornhill CJ, Lord Woolf MR and Sir Richard Scott V-C stated in Locabail UK Ltd v Bayfield Properties Ltd [2000] QB 451 at [25]: “The greater the passage of time between the event relied on as showing a danger of bias and the case in which the objection is raised, the weaker (other things being equal) the objection will be.” See also Howell v Lees-Millais [2007] EWCA Civ 720 at [7] (Sir Anthony Clarke MR). In O’Neill v HM Advocate (No 2) [2013] UKSC 36, [2013] 1 WLR 1992 Lord Hope stated at [58]: “The court is invited in this case to examine the allegation of apparent bias after the proceedings that are said to have been affected by it have taken place. But the principles to be applied are the same as those which determine the question whether, because of things he has said or done previously, the judge should recuse himself. …” Although the test to be applied is the same whether the issue arises before or after the hearing, there is a practical difference between the two situations as Mummery LJ explained in AWG Group Ltd v Morrison [2006] EWCA Civ 6, [2006] 1 WLR 1163 at [9]: “Most of the leading authorities were appeals arising from hearings that had already taken place or were under way and an objection to the judge was based on facts discovered during the course of, or only after the end of, the hearing. Although this is a different case, as the hearing has not yet started, the same principle applies. Where the hearing has not yet begun, there is also scope for the sensible application of the precautionary principle. If, as here, the court has to predict what might happen if the hearing goes ahead before the judge to whom objection is taken and to assess the real possibility of apparent bias arising, prudence naturally leans on the side of being safe rather than sorry.” As Mummery LJ also explained in that case: Upholding the bias objection on the eve of the trial would cause considerable disruption: the trial would have to be adjourned, as there would be practical problems in finding a new trial judge at such short notice; the parties would suffer additional costs resulting from the adjournment; and there would be delay in fixing a new trial date. Inconvenience, costs and delay do not, however, count in a case where the principle of judicial impartiality is properly THE HON MR JUSTICE ARNOLD
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invoked. This is because it is the fundamental principle of justice, both at common law and under article 6 of the Convention for the Protection of Human Rights. If, on an assessment of all the relevant circumstances, the conclusion is that the principle either has been, or will be, breached, the judge is automatically disqualified from hearing the case. It is not a discretionary case management decision reached by weighing various relevant factors in the balance.” A key part of the purpose of the doctrine of apparent bias is to avoid both the risk of subconscious bias on the part of the tribunal and public perception of that risk. This emerges very clearly from the decision of the House of Lords in Lawal v Northern Spirit Ltd [2003] UKHL 35, [2003] ICR 856, where Lord Steyn said: … there is now no difference between the common law test of bias and the requirements under article 6 of the Convention of an independent and impartial tribunal, the latter being the operative requirement in the present context. The small but important shift approved in Porter v Magill [2002] 2 AC 357 has at its core the need for ‘the confidence which must be inspired by the courts in a democratic society’: Belilos v Switzerland (1988) 10 EHRR 466, 489, para 67; Wettstein v Switzerland (Application No 33958/96), para 44; In re Medicaments and Related Classes of Goods (No 2) [2001] ICR 564, 591, para 83. Public perception of the possibility of unconscious bias is the key. … The correct analysis is as follows. One starts by identifying the circumstances which are said to give rise to bias. In the present case the evidence is limited to the facts set out at the beginning of this opinion, namely that a Queen's Counsel appearing on an appeal before the appeal tribunal had sat as a part-time judge in the appeal tribunal with one or both lay members hearing the appeal. In such cases there may be substantial variations in the extent to which the part-time judge and the wing members had sat together in the appeal tribunal and how recently. These differences are, however, not material. The House must concentrate on a systemic challenge and apply a principled approach to the facts on which it is called to rule. The principle to be applied is that stated in Porter v Magill, namely whether a fair-minded and informed observer, having considered the given facts, would conclude that there was a real possibility that the tribunal was biased. Concretely, would such an observer consider that it was reasonably possible that the wing member may be subconsciously biased? The observer is likely to approach the matter on the basis that the lay members look to the judge for guidance on the law, and can be expected to develop a fairly close relationship of trust and confidence with the judge. The observer may also be credited with knowledge that a recorder, who in a criminal case has sat THE HON MR JUSTICE ARNOLD
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with jurors, may not subsequently appear as counsel in a case in which one or more of those jurors serve. Despite the differences between the two cases, the observer is likely to attach some relevance to the analogy because in both cases the judge gives guidance on the law to laymen. But the observer is likely to regard the practice forbidding part-time judges in the employment tribunal from appearing as counsel before an employment tribunal which includes lay members with whom they had previously sat as very much in point. The editor of the Industrial Relations Law Reports [2002] IRLR 225 has argued that ‘A rule to the same effect is even more necessary in the Employment Appeal Tribunal’. In favour of this view there is the fact that the appeal tribunal hears only appeals on questions of law while in the employment tribunal the preponderance of disputes involve matters of fact. The observer would not necessarily take this view. But he is likely to take the view that the same principle ought also to apply to the appeal tribunal.” Lundbeck’s case is that the fair-minded and informed observer would conclude that there was a real possibility of my being subconsciously biased in my assessment of Prof Baldwin’s evidence by reason of my past association with him. Resolution contends that the fair-minded and informed observer would conclude that there was no real possibility of this. It is convenient to begin my consideration of this question by referring to a number of points which are not material, in order to clear them out of the way. First, I share the reaction of Wright J in Berkeley Administration Inc v McClelland [1990] FSR 565 at 571 to an application to recuse oneself, namely a strong inclination to accede to it without further ado. It is clear from the authorities, however, that, just as it is my duty to recuse myself if the application is well-founded, it is also my duty to hear the trial of this claim if the application is not well-founded. Secondly, I wondered whether I should direct that the application should be heard by another judge. After all, it might be said that it is difficult for me objectively to assess the impact of my own connection with Prof Baldwin on the fair-minded and informed observer. It is clear from the case law, however, that it is conventional for such applications to be heard by the judge in question. I presume that the reason for this is the one identified by Patten LJ in L-B. Thirdly, Lundbeck has adduced evidence that its application is not motivated by tactical considerations. That evidence has not been challenged and I have no hesitation in accepting it. Fourthly, Resolution has made it clear, both through the evidence of its solicitor and through the submissions of its counsel, that it is very concerned about the consequences if the application is successful. Resolution’s position is that I am not merely the default candidate to try this case, but well qualified to do so precisely because of my training in chemistry, and in particular synthetic organic chemistry, as THE HON MR JUSTICE ARNOLD
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well as my subsequent training and experience in the law. Resolution is concerned, and in my view reasonably concerned, at either of the prospects identified in paragraph 6 above. A trial before a non-specialist judge will inevitably take longer than the eight days allocated for a trial before me (I note that the trial before Harrington J in Canada took six weeks, although I am confident that it would not take that long here even before a non-specialist judge). Moreover, a non-specialist judge might feel the need for a scientific advisor to assist him. Even if a specialist deputy judge could be found to try the case at this notice, which is unknown, Resolution is concerned at the prospect of such a judge being asked to reach a different conclusion on the same issue, albeit on different evidence, to that reached by Kitchin J. Thus the first option imposes greater costs on the parties; the second option raises a different problem with regard to justice being seen to be done; and both options would require greater public resources to be expended on this case to the potential detriment of other court users. Counsel for Lundbeck submitted on the authority of AWG v Morrison that such considerations were irrelevant. Although it seems to me that it might be said that the fair-minded and informed observer would be aware that neither the parties’ nor the court’s resources are unlimited and would be conscious of the needs of other litigants, I accept that submission. Fifthly, I am entirely satisfied in my own mind that my past connection with Prof Baldwin would not affect my assessment of his evidence. I believe that that would have been the case in any event, but it is particularly so given that the present application has been made. As the Nobel laureate Professor Daniel Kahneman has explained in Thinking, Fast and Slow (Penguin, 2012), the first and crucial step in combating any form of cognitive bias is to be aware of it. It is clear from the authorities, however, that what matters is not what I think, but what the fair-minded and informed observer would think. I turn, therefore, to consider the factors which the fair-minded and informed observer would take into account. In my judgment, they are as follows. The overall context. The overall context is that of a claim for patent revocation: a specialist area involving the application of a sophisticated body of law to highly technical facts. The fair-minded and informed observer would appreciate that this is far removed from, say, an allegation of deceit. The observer would also appreciate that, because it is a specialist field, it is one in which many of the participants are known to each other. Thus I am well acquainted with most of the barristers, and many of the solicitors, who conduct litigation in the Patents Court. It is also not uncommon for expert witnesses to act in more than one case. I have already had the experience of assessing the evidence of an expert who had given evidence in a previous case before me. Prof Baldwin’s status as an expert witness. Prof Baldwin will be giving evidence as an expert witness. The fair-minded and informed observer would appreciate four points. First, all expert witnesses are obliged by CPR Part 35, Practice Direction 35 – Experts and Assessors and the Protocol for the Instruction of Experts to Give Evidence in Civil Claims to assist the court by providing objective, unbiased opinions on matters within their expertise (as to the impact of this requirement in patent actions, see MedImmune Ltd v Novartis Pharmaceuticals UK Ltd [2011] EWHC 1669 (Pat) at [99]-[114]). Secondly, the role of expert witnesses in patent actions is as I have explained above. Thus Prof Baldwin’s primary role will be to educate the court THE HON MR JUSTICE ARNOLD
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as one of four expert witnesses called by the parties. Furthermore, what will matter is not his opinion, but the objective reasons he gives for his opinion. Thirdly, Prof Baldwin is an eminent scientist, as can be seen from the fact that he is a Fellow of the Royal Society and has been knighted for his services to chemistry. Fourthly, Prof Baldwin is an experienced expert witness. Not only that, but in addition he has already given evidence on the issue of obviousness of the patented invention over 884 in parallel proceedings. It follows from these considerations that there is unlikely to be any issue as to Prof Baldwin’s credibility. It also follows that the question for the court to assess will be the extent to which Prof Baldwin’s opinions reflect the common general knowledge and perceptions of the notional skilled person, not whether they are genuinely held or even scientifically correct. The importance of Prof Baldwin’s evidence. Slightly surprisingly, I have not been provided by either side with Prof Baldwin’s expert report even though I understand that it has now been served (nor any of the other expert reports). I therefore take the following description from the evidence of Mr Forsyth: “Professor Baldwin has been instructed to advance expert evidence on the approach the skilled person would have taken to resolve citalopram at the relevant time. He is also giving evidence on how he devised an experimental protocol in relation to aspects of the experiments carried out in relation to the first ground set out above.” Thus it appears that Prof Baldwin will be giving evidence in relation to both 884 and Bigler. Mr Forsyth also explains the nature of the evidence being given by Resolution’s other two expert witnesses. It is clear from this that Prof Baldwin will be an important witness for Resolution even though he does not cover the whole of the case. The nature and extent of my past connection with Prof Baldwin. I have set this out above. In sum, what it amounts to is that Prof Baldwin supervised, but not closely, a research project lasting less than a year which I conducted as a compulsory part of my degree course. This research led to the publication of a short paper in the joint names of Prof Baldwin, Dr Ziegler and myself; but I was not involved in writing or submitting the paper and most of the work it reported was carried out by Dr Ziegler. The passage of time and my change in status. The fair-minded and informed observer would note that a little over 30 years have passed since my association with Prof Baldwin and that in that time I have successively become a barrister, QC and High Court Judge. The fair-minded and informed observer would appreciate that, as a Part II supervisor supervising a student, Prof Baldwin had some measure of authority over me; but that, as a judge assessing a witness, I would have a considerable measure of authority over Prof Baldwin. The nature and extent of my part connection with Prof Davies. The fair-minded and informed observer would note that I had also been educated as a student by Prof Davies, but that the connection was a materially less close one than that with Prof Baldwin. THE HON MR JUSTICE ARNOLD
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Prof Davies’ status as an expert. The fair-minded and informed observer would appreciate that the four points identified in paragraph 57 above also apply to Prof Davies. With regard to the third and fourth points, Prof Davies is a scientist of almost equal distinction to Prof Baldwin, is also an experienced expert witness and has also given evidence on the issue of obviousness over 884 before. Furthermore, as explained in my previous judgment, in a number of previous cases courts have concluded that Prof Davies’ opinions accurately represented the approach of the skilled person. Thus this is not a case in which there is a disparity in the authority of the respective experts. Specific aspects of the present case. Counsel for Lundbeck relied on certain specific aspects of the present case as bearing on the matter. The first is that the priority date of the Patent is 14 June 1988. He submitted that it was significant that this was only five years after I presented my Part II thesis. I do not think the fair-minded and informed observer would consider this significant. The observer would appreciate that five years is a long time in a fast-moving discipline like synthetic organic chemistry and that, in any event, the priority date has little bearing on my approach to the assessment of Prof Baldwin’s evidence. Secondly, counsel pointed out that Baldwin’s Rules were formulated by Prof Baldwin in papers published about five years before I started my Part II project. In my view the fair-minded and informed observer would regard this as even less significant. Thirdly, counsel relied on the fact that the 1984 paper mentions the fact that the method produced “little discrimination of product stereochemistry”. In context, this is an utterly banal observation: it is reporting a negative. Counsel argued that it showed that consideration of stereochemistry was a feature of my relationship with Prof Baldwin and that this was significant in a case where one of the key issues involved consideration of stereochemistry. Stereochemistry was a basic part of any undergraduate’s education in organic chemistry in the early 1980s, however. I covered it well before I started Part II. Indeed, stereochemistry may have been discussed by Prof Davies in his lectures (I do not recall). The issue in this case is not as to stereochemistry generally, which is a large topic, but specifically as to Baldwin’s Rules for stereospecific ring closure. So far as I can remember, my Part II project did not involve consideration of Baldwin’s Rules. Certainly, there is nothing in the 1984 paper to suggest this. Accordingly, I do not think that the fair-minded and informed observer would consider this significant. The judicial approach. The fair-minded and informed observer would appreciate that, although English judges are not specifically taught (as perhaps they should be) how to identify and combat their own cognitive biases, their general training and experience in the practice of the law and in acting judicially equips them to do so. More specifically, a judge of five years’ standing like myself (ignoring previous service as a Deputy High Court Judge) has considerable experience in objectively assessing the evidence of witnesses. More specifically still, I have considerable experience in assessing the evidence of expert witnesses in patent actions. Analogies. Both counsel prayed in aid various factual analogies. In my view, analogies are not helpful in the present context. As the authorities make clear, the issue is exquisitely fact-sensitive. In particular, I do not think that the fair-minded and informed observer would be impressed by the point that, if I had undertaken a DPhil THE HON MR JUSTICE ARNOLD
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at Oxford, Prof Baldwin would probably have been disqualified as acting as one of the examiners of that thesis. As noted in paragraph 60 above, since then our positions have in a sense been reversed. Conclusion. Taking all of these factors into account, would the fair-minded and informed observer conclude that there was a real possibility of my being subconsciously biased in my assessment of Prof Baldwin’s evidence by reason of my past association with him? If I were in any real doubt as to the answer to this question, I would recuse myself. Having given the matter anxious consideration, however, I am in no doubt that the fair-minded and informed observer would not conclude that this was a real possibility. It was common ground before me that an objection of apparent bias is capable of being waived by the affected party, although counsel for Lundbeck reserved the right to argue to the contrary in a higher court. In order to be binding, a waiver must be voluntary, informed and unequivocal: see JSC BTA Bank v Ablyazov [2012] EWCA Civ 1551, [2013] 1 WLR 1845 at [77] to [84] (Rix LJ). As that case makes clear, waiver may be inferred from a party’s conduct, and in particular from silence with regard to the objection coupled with continued participation in the proceedings. Counsel for Lundbeck submitted that this involved an objective test of subjective intention, and I will proceed on that basis. He also submitted that a lack of promptitude in taking an objection of apparent basis was not to be equated with waiver, which I accept. Resolution contends that Lundbeck waived any objection on the ground of apparent bias by its conduct between 14 March and 11 September 2013. Lundbeck disputes that any waiver can be inferred from its conduct. Given my conclusion on the main issue, I shall deal with this issue relatively briefly. Lundbeck was aware from 14 March 2013 of (i) the fact that the trial was listed before me, (ii) my connection with Prof Baldwin and (iii) the real possibility, but not the certainty, that Prof Baldwin would be called as an expert witness by Resolution. Yet Lundbeck did not notify Resolution, or the court, that it would have an apprehension of apparent bias in that event. If it had done so, Resolution could have considered using the services of another expert and the court could have taken steps at that stage to investigate the availability of a specialist deputy judge. Nevertheless, I do not consider that Lundbeck can be said to have waived its right to object at that stage since it was not certain that Prof Baldwin would be called. On 2 July 2013, however, Resolution made it plain to Lundbeck that it was going to adduce expert evidence from Prof Baldwin at trial. In my view it is immaterial that the precise scope of Prof Baldwin’s evidence was not elucidated in the letter and that Prof Baldwin’s name had not been formally notified at that stage. Further confirmation of Resolution’s intentions was provided on 19 July 2013. Despite this, Lundbeck raised THE HON MR JUSTICE ARNOLD
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no objection. Furthermore, it continued to participate in the proceedings and, in particular, it appeared by counsel at the hearing before Norris J on 30 July 2013. In my view it is immaterial that I was not sitting on that day and that the hearing was before a different judge. Not until 11 September 2013 did Lundbeck raise any objection to my hearing the trial. In my judgment it is clear that Lundbeck’s actions were voluntary and that it had all the information it needed by 2 July 2013. The question I have to decide is whether its actions after that date were unequivocal: did those actions amount to a mere lack of promptitude in raising the objection or did they evince an intention to waive any right to object? While I have considerable sympathy with the proposition that Lundbeck could and should have raised its objection at an earlier date than it did, in the end I am not persuaded that its actions were sufficiently unequivocal as to amount to a waiver.

Source: http://www.laipla.net/wp-content/uploads/2013/10/Resolution-v-Lundbeck-recusal-judgment.pdf

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