A recent decision of the Court of Appeal in the United Kingdom (22 October 2002) has dismissed an attempt to overturn a first instance patent judgment on the basis that the original trial judge was biased.

Aktiebolaget Hässle (AH) was the registered proprietor of two United Kingdom patents for the enteric coatings for Omeprazole, AstraZeneca’s blockbuster drug for the treatment of gastric ulcers. In the original trial two parties, Cairnstores Limited and Generics (UK) Limited, were applying to revoke the two patents. They were successful and the patents were revoked as obvious.

The patentee, AH, alleged that on a number of occasions during the original hearing, the Judge had questioned the evidence given by AH’s expert witness. AH appealed the decision to the Court of Appeal on the basis that the degree and the nature of the questioning had gone beyond what one would expect from a Judge and that, as such, the Judge had ceased to be a neutral observer.

The Appellant based its appeal on two inter-related grounds. First, as a result of the degree and nature of the questioning shown by the Judge during the original hearing, the Judge had demonstrated an “appearance of bias” and secondly, that as a result of these interventions the patentee had not received a fair trial. The Appellant accepted that its appeal against the finding of invalidity for obviousness would not be pursued in the event that the Court of Appeal did not find in its favour in relation to its case on bias.

The Appellant relied on the basic proposition of law in the United Kingdom that as well as being impartial in its decision-making, a tribunal must not give the ‘appearance’ of bias. That is a tribunal must not appear partisan in the way that it acts or give the impression that it is acting for one of the sides in the dispute. The patentee claimed that the Judge’s interventions, when seen cumulatively, gave the impression that he was unfairly against them.

The Respondent to the appeal accepted this principle of law, but submitted that this analysis did not go far enough. In looking at a case of apparent bias one needed to go beyond a superficial analysis. In a case where the Judge or tribunal gave the appearance of bias, one needed to go further. One needed to evaluate if in the context of all the relevant material there was a danger (or possibility) of the alleged bias having caused an injustice. If on a view of all the relevant facts there was not such a danger, then the impugned decision would be allowed to stand. The Respondent referred in particular to the judgment of Sir Thomas Bingham MR in R v Inner West London Coroner ex parte Dallaglio ([1994] 4 All ER 139 at 162): “… The famous aphorism of Lord Hewart CJ in R v Sussex Justices, ex p McCarthy … that “justice … should manifestly and undoubtedly be seen to be done” is no longer, it seems, good law, save of course in the case where the appearance of bias is such as to show a real danger of bias. …”

As well as arguing the case on the basis of an appearance of bias the patentee also claimed that the Judge’s actions had led to an unfair hearing. They relied on authorities of the European Court of Human Rights to show that there are occasions where a Judge’s interventions during a trial, together with other deficiencies, can render the proceedings unfair under Article 6 of the Convention on Human Rights. The patentee also relied on case law from the United Kingdom that stated that where a Judge conducts cross-examination of witnesses, that Judge risks descending into the arena of the trial and, as a result, “is liable to have his vision clouded by the dust of the conflict.” (Yuill v Yuill [1945] All ER 183 at page 189 B).

The patentee attempted to demonstrate that whilst some seven percent of the cross examination of the claimants’ expert witness was composed of questions from the Judge, in the case of the patentee’s expert witness, it was some fourteen percent. As well as identifying the overall percentage of questions from the Judge, the patentee took the Court of Appeal through some of the relevant questioning to support its contention of bias.

However, when viewed in context the Court of Appeal was not convinced. It cited two examples of the cross-examination of the patentee’s expert witness which were relied on by the Appellant as examples where the Judge had intervened extensively. The Court of Appeal concluded that in the first example the Judge was entitled to probe to see if there was an answer to an apparent inconsistency in the patentee’s expert evidence. In the second example, the Court held that the four questions which appeared in the transcript were in real terms the same question and that the Judge was “correctly encouraging the witness to give a clear answer to a difficult question.” The Court of Appeal took the view, based on an examination of the testimony given during the original hearing, that the Judge’s actions were not and would not be seen to be such as to render the trial unfair.

The Court of Appeal also took the opportunity to state that in its view this case was one that fell into the category of a party that was aggrieved by the result, rather than one in which there had been an unfair hearing. It concluded its judgment by stating its hope that it will not be necessary for the Court of Appeal to consider such a case as this again.

First published in the December 2002 issue of WIPR.