Judge refuses to recuse himself in case where expert witness was his Oxford supervisor

Arnold: anxious consideration

A High Court judge has refused to recuse himself from a case involving an expert witness who was once his academic supervisor at Oxford University.

Mr Justice Arnold said a fair-minded and informed observer would not conclude that there was a real possibility of him being subconsciously biased in his assessment of Professor Sir Jack Baldwin’s evidence.

Resolution Chemicals Ltd v H Lundbeck A/S [2013] EWHC 3160 (Pat) had already encountered problems finding a judge as it was given a technical complexity rating that meant it should be listed before one of the two judges in the Patents Court who have science degrees and have specialised in intellectual property law throughout their careers.

At the time this was decided, the two specialist judges were Arnold J and Mr Justice Floyd (as he then was). The latter was debarred from hearing the case because he had previously represented the claimants and after his subsequent promotion to the Court of Appeal, his replacement – Mr Justice Birss – was also unable to hear the case due to a conflict of interest.

Earlier this year the claimant was given permission to call Professor Baldwin as an expert and the defendant then asked Arnold J to recuse himself. This would mean the claim being tried either by one of the non-specialist assigned judges of the Patents Court or by a specialist Deputy High Court judge.

In his ruling, Arnold J set out his recollections of his time studying chemistry at Oxford under Professor Baldwin’s supervision with the proviso that “it is difficult accurately to remember the events of more than 30 years ago”. He said he saw the professor once a month for half an hour and otherwise had little direct contact. Since leaving Oxford, he attended a dinner in 2005 that in part marked Professor Baldwin’s retirement but he could not remember whether the two had spoken.

The judge said his initial reaction had been simply to accede to the request to recuse himself, but the authorities were clear that his duty was to hear the trial if the application was not well-founded.

Arnold J considered a number of factors which the “fair-minded and informed observer” would take into account, including the passage of 30 years since his association with Professor Baldwin.

“In that time I have successively become a barrister, QC and High Court judge,” he noted. “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.”

He also highlighted 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”.

He continued: “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.”

It all led him to decide – after “anxious consideration” – that there was no real possibility of the observer concluding that he would be biased in assessing Professor Baldwin’s evidence.

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