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.