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Published 9 mayo 2017
In considering the well established principles outlined in Porter v Magill [2002], the Court of Appeal has recently (in the case of Willmot v Rotherham NHS Foundation Trust [2017] EWCA CIV 181) reaffirmed their view that, when considering judicial bias, it is necessary to consider the circumstances of the case, overall fairness, and apply the test of objectivity. The judge's decision must not only be independent and free from bias, it must also appear to be free from bias to a fair minded and informed observer.
Willmot v Rotherham NHS Foundation Trust [2017] EWCA CIV 181 concerned the decision of an orthopaedic surgeon to carry out an uncemented total knee replacement (which is appropriate to treat osteoarthritis but is not appropriate where a patient suffers from seronegative arthritis) when operating on Mrs Willmot in 2008. Although, Mrs Willmot was diagnosed with seronegative arthritis in 2013, it was alleged that the orthopaedic surgeon suspected it at the time of surgery in 2008, and therefore should not have proceeded with the surgery at all or, alternatively, he should not have used an uncemented implant.
The matter came to Trial in March 2015 before HHJ Moore sitting at the County Court in Sheffield. During the opening, it was explained by the judge that he had undergone a resurfacing procedure on his own knee and he was familiar with the science and processes of knee surgery. His own view was that there was evidence that cementless implants (which Mrs Willmot had) could be more beneficial than the cemented type, but he would give the experts the opportunity to address him on the point.
HHJ Moore was critical of both experts for failing to provide literature to support their respective views and, during the course of hearing expert evidence from Mrs Willmot's expert in orthopaedic surgery, he expressed his displeasure that the expert shook his head in disagreement with his view that cementless implants are likely to be used more frequently in the future with knee replacements.
Mrs Willmot's legal representatives applied for HHJ Moore to recuse himself on the basis that the knowledge he held put him in conflict with the views held by Mrs Willmot's expert (that an uncemented implant should not have been used), creating a perception of bias. That application was dismissed as the judge considered he was able to listen to the evidence fairly and independently. The claim was dismissed at first instance. A lengthy judgment was provided in which HHJ Moore concluded it was reasonable to diagnose the Claimant with osteoarthritis (which Mrs Willmot had been diagnosed with prior to the surgery) and operate using an uncemented implant.
Mrs Willmot appealed the decision on the basis that her expert evidence had been incorrectly rejected and that it should have been preferred to the Defendant's expert evidence. Therefore the Court of Appeal was invited to find either:
Both strands of the appeal were considered by Lord Justice Sales, Lord Justice McCombe and Lord Justice Jackson. In dismissing Mrs Willmot's appeal, Lord Justice Sales giving the lead judgment noted:
Ultimately, the Court of Appeal dismissed Mrs Willmot's appeal based on judicial bias, determining that nothing the judge said gave an objective appearance of bias or a predetermination of the matters addressed in evidence.
The case is a reminder of the principles set out in Porter, which illustrate that to succeed with establishing a perception of bias, a fair minded and informed observer having considered the facts would conclude that bias was present. Lord Justice Sales concluded that was not the case in Willmot and the judge listened to the issues impartially before giving a fair and impartial judgment. Lord Justice McCombe and Lord Justice Jackson agreed with his view.
If you want discuss this article with someone in more detail, please contact Liam Riley on +44 (0)113 251 4960 orlriley@dacbeachcroft.com.
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