The Court of Appeal on Recusal - just in time to be too late

The IPKat has reported a few times on the attention-riveting case of Resolution v Lundbeck.  The first issue in this legally rich dispute is whether Resolution were estopped from challenging the validity of Lundbeck's patent for escitalopram because of their connection with Arrow Generics, one the plaintiffs in an earlier, unsuccessful attempt to achieve the same result (which readers will recall went all the way the House of Lords as it then was).  The IPKat reported the estoppel judgments at first instance here, and on appeal here.  It having been established that Resolution were not bound by privity of interest with Arrow, Resolution's case looked all set to proceed.

But no, a new issue arose.

One of the substantive issues in this case was the application of the so-called Baldwin's Rules, concerning ring-closure reactions in organic chemistry, devised and named after Professor Sir Jack Baldwin FRS, formerly Waynflete Professor of Chemistry at Oxford University.  Resolution were going to call Baldwin as a witness.  But Lundbeck objected that he had been the Part II supervisor of Arnold J, the judge set to hear the substantive case, when Arnold J had been an undergraduate at Oxford University.  Lundbeck thought that Arnold J would not be seen to be free of bias, and asked that he recuse himself.

As reported by the IPKat here, Arnold J declined to recuse himself.  Lundbeck appealed, and the Court of Appeal (the Chancellor Sir Terence Etherton, Lady Justice Hallett and Lady Justice Sharp) dismissed the appeal.  The result was announced immediately (as reported by the IPKat here) but the  reasoned judgement was to follow.  This has now been issued as Resolution Chemicals Ltd v H Lundbeck A/S [2013] EWCA Civ 1515 (25 November 2013), which is available on BAILII here.

Now this Kat needs to explain his own particular interest in the story.  The expert called by Lundbeck to explain Baldwin's Rules to the court, in both these proceedings and the previous litigation, was Professor Baldwin's successor as Waynflete Professor of Chemistry, Professor Steve Davies.  Dr Davies, as he then was, was this Kat's DPhil supervisor when he was a student at Oxford.  There was, let us say, a certain rivalry between the two research groups.  Professor Baldwin was not an expert witness in the earlier litigation in the UK (although he was in the corresponding Dutch proceedings, where, in contrast to the outcome in the UK, the Lundbeck patent was held to be invalid, apparently in no small part because of Professor Baldwin's testimony.)  The prospect of the predecessor and successor Waynflete Professors acting for opposite sides in the Patents Court was of interest to many observers.  This Kat would also like to confirm that the pictures sought out by Merpel in the previous post are indeed accurate likenesses of the respective subjects.

Returning to the case at hand, Sir Terence, giving the leading judgment with which the other learned judges concurred, had no difficulty in rejecting the appeal and finding no grounds for recusal.  The distance in time (30 years) since Arnold J was that Part II student; the distance in the relationship even at the time (Professor Baldwin said he had no specific recollection of Arnold J, while the latter estimated that he "saw Prof Baldwin about once every four weeks for about half an hour"); the great change in the status of the two people now; and the fact that Arnold J as a student had also had some contact with Dr Davies; all meant that
"there is simply nothing left that could give rise to any real concern on the part of the fair-minded and informed observer"
What seems to this Kat as a particular weak argument, namely that Oxford University Regulations "would have prohibited Professor Baldwin from assessing a doctoral thesis of the Judge due to his role as supervisor and their co-authorship of the Paper", was rejected as not being of "any relevance whatever to the interaction between the Judge and Professor Baldwin as an expert witness some thirty years later".

However, those of us who have been looking forward to the substantive case now proceeding are facing great disappointment.  Merpel has it on impeccable authority that the case has now settled and the substantive trial is not now to proceed.  This will deprive patent watchers of what had promised to be a most fascinating case.
The Court of Appeal on Recusal - just in time to be too late The Court of Appeal on Recusal - just in time to be too late Reviewed by Darren Smyth on Monday, November 25, 2013 Rating: 5


  1. This is a nice judgment and I am sure is correct. The important point is for judges to recognise as part of their everyday practice that subconscious influences can be powerful. I'm sure that if one carried out stats on judgments one would be able to see those that are more likely to find validity, infringement etc, and it's important for the system to keep working to get rid of those things.

  2. But you should have said something about Arnold J's recollections of his undergraduate days, about him being demoralised at the failure of most of his experiments (welcome to chemistry), the offer of the D.Phill place and being predicted to get (and getting) a second class degree (nothing wrong with that, I have one myself). Although the Chancellor's judgment is, of course, an excellently fashioned piece of judicial reasoning, Arnold J's account of his undergraduate days is an excellently reasoned piece of judicial recollection.


  3. Dear Ashley, You are quite correct that Arnold J's recollections of undergraduate days are notable and interesting, and my post probably should indeed have quoted them. There is a reason why I did not - they were present in the first instance judgment and therefore did not seem to be "news". I think that many chemists (and indeed practising scientists of other disciplines) have reached an epiphany similar to Arnold's and then turned to law - some earlier, some later - and so I expect that his comments will resonate with many.
    Kind regards

  4. Whilst more balanced than previous posts on this subject, the implication arising from this post needs some rebalancing. If one reads the Dutch first instance judgment, it is clear that Professor Baldwin's testimony was - indeed - only a small part of the reasoning. Further, all those parts of that judgment which could have been supported by Professor Baldwin's testimony, have now been overturned by the Dutch Supreme Court (leaving only matters unrelated to his testimony to be the subject of further examination by the Dutch Court of Appeal in due course). In common with the other 9 jurisdictions around the world in which the validity of the patent in suit has been challenged, therefore, Professor Baldwin's arguments (he personally gave evidence in 4 jurisdictions) have been rejected in favour of Professor Davies' arguments (he gave evidence in 9). Leaving aside the Dutch Court of Appeal, the patent has therefore ultimately been found valid by every Court that has examined it.

  5. Darren

    Fair enough - it is not often that you see Richard Arnold the person as opposed to Arnold J. the judge.



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