By Justin Crossley
In Willmott–v- Rotherham NHS Foundation Trust (2017) EWCA Civ 181 the Court of Appeal considered whether a Judge’s comment during a clinical negligence trial had the objective appearance of bias or prejudging the evidence.
The Appellant brought an unsuccessful claim in damages arising from the Respondent’s alleged negligent decision to undertake knee replacement surgery and the type surgery performed. The trial was heard before HHJ Moore sitting in Sheffield County Court.
During the course of the opening of the trial, the Judge explained to the parties that he had undergone a resurfacing procedure on his own knee and hence was very familiar with the science of knees and the thought processes behind it.
One of the issues at trial was the use of cementless knee joint implants. During the evidence, the Judge said that his own experience of treatment and his own reading outside the case showed that there was a lot of evidence that cementless implants could be more beneficial than cemented, although he noted there was “a big generalisation” and was not one that he would bring into the case unless and until he had to and that, if he felt the need to, he would give the experts a chance to address him on it.
During the course of the Respondent’s expert giving evidence, the Judge noted that the Claimant’s expert was seen to be shaking his head in disagreement. The Judge expressed his displeasure of such conduct.
The Judge attempted to narrow the issues before him. He was critical of both experts for failing to include, in their joint statement, papers or other information addressing the issue of whether a cementless implant was preferable to a non-cemented implant.
At the conclusion of the Respondent’s expert evidence, the Appellant made an application to the Judge that he should recuse himself on the grounds of apparent bias or predetermination, contending that the Judge’s background knowledge about knee replacements might lead him to decide the case other than on the evidence heard in court and also because the Judge had criticised the Appellant’s expert for shaking his head in the course of the trial. The Judge dismissed the application.
The trial continued with the Appellant’s expert giving evidence and apologising to the Judge from the witness box following which the Judge assured him he did not need to worry about this. The Appellant’s claim was dismissed. The Judge gave a lengthy Judgment, ultimately preferring the Respondent’s expert evidence.
The Appellant argued there were serious procedural irregularities in the way that the Judge conducted the trial. She alleged unfairness to the Appellant and an objective appearance of bias or predetermination of issues in the case. She also argued that the Judge had wrongly rejected the Appellant’s expert evidence, particularly when there had been agreement between the respective experts on certain issues.
Sales LJ giving the lead judgment dismissed the appeal. However, before giving his reasons he stated “I should say that I think it was unwise for the Judge to refer so extensively to his own experience of knee treatment and his background reading on the subject. This gave rise to concern that the Judge might not be confined in his approach to the evidence adduced before him”.
The appeal court went on to find, however, that a full analysis of what the Judge did and said did not give an objective appearance of bias or predetermination of matters addressed in the evidence. The appeal court concluded that the Judge had been right to reject the Appellant’s application to recuse himself. At all stages during the trial, the Judge had made it clear that he had expressed no definitive views about any aspect of the case and that he retained an open mind in relation to the expert’s evidence.
Whilst it was noted that the Judge had intervened significantly in terms of questioning the experts, this could be explained in terms of his wishing to understand fully all the issues before him. This therefore did not constitute unfairness or the appearance of unfairness.
The Judge had given both sides’ experts fair warning at an early stage that he required assistance with particular parts of their evidence.
Ultimately, the Judge was entitled to prefer the opinion of one expert over another. The Judge was entitled to be critical of the Appellant’s experts’ evidence as those criticisms were all matters which had been dealt with during cross-examination. For these reasons the appeal was dismissed.