No possibility of subconscious bias in judge’s assessment of witness’ evidence


Re: Resolution Chemicals Limited v H Lundbeck A/S [2013] EWCA Civ 1515

Appeal against an order to refuse an application that the judge recuses himself from the trial. The essence of the recusal application was that there was a real possibility of subconscious bias in the judge’s assessment of the evidence by one of the witnesses, with whom he had a supervisor/supervisee relationship around 30 years ago.

Held: there was no difference between the common law test of bias and the requirements under ECHR, art 6(1). Underlying both these principles was the fundamental consideration that justice should be seen to be done. The decision to recuse was not a case of discretionary case management therefore considerations of inconvenience, cost and delay were irrelevant. The test of “a real possibility of bias” was not one of “any possibility” of bias. There was no specific continuing link between the judge’s studies under the expert and the science involved in the case. On the facts of the case there was nothing that could have given rise to any real concern on the part of a fair-minded and informed observer. Of particular relevance was the length of time since the supervisor/supervisee relationship and the limited contact that there had been between the two at the time. Therefore the appeal was dismissed.

Hugh Tomlinson QC was involved in this case.