The question posed above appears to arise squarely from the Macrossan case (see footnote 1 below). Surprisingly, it seems to be answerable in the affirmative. The question is really one of administrative law.
The administrative law point
To understand the administrative law aspect of the case, one needs to read the report of the decision by Mann J. in the High Court in the Macrossan matter - Neal William Macrossan v Comptroller-General of Patents etc. [2006] EWHC 705 (Ch).
The administrative law point in issue was whether the decision of the Patent Office Hearing Officer was tainted by an apprehension of bias, such that it should be set aside. The main case relied upon in this regard by Mr Macrossan was Porter v Magill [2002] 2 AC 357 in which Lord Hope of Craighead confirmed (at para. 103) that -
"The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased."
The apprehension of bias was argued by Mr Macrossan to arise out of -
"The UK Patent Office has a strong tradition of rejecting patent applications for software... This tough approach has ensured that only patents with a ‘high presumption of validity’ are granted."
(In the face of the then law on this, as articulated by Laddie J. in Fujitsu Limited’s Application [1996] RPC 511 at 533, which was that -
"...at the patent office stage, the benefit of the doubt should be given to the applicant.")
Mann J.’s response
Mann J. considered the administrative law issue in paragraphs 14 to 20 of his judgment.
At one point Mann J. implied that the rules regarding 'bias' may have had at least some application to the hearing - but he did not identify the precise scope of the operation of the rules. This is seen at paragraph 16 of the judgment where Mann J. said -
"...for present purposes I do not consider that the full bias rule, as such, applies to a hearing of this nature." (emphasis added)
Later in the judgment however, Mann J. seemed to suggest that the rules had no operation whatsoever. This is seen at paragraph 18 where Mann J. said -
"...those principles do not apply."
Mann J. did not cite any case law authority for either view.
Also, Mann J. made the following surprising observation at paragraph 18 of the judgment in relation to the ‘paragraph 6.33 report’ which was argued by Mr Macrossan to comprise secret submissions:
"Nor does that report qualify as some sort of 'secret submissions' so as to be unacceptably unfair." (emphasis added)
It seems implicit from this that Mann J. was prepared to tolerate a degree of unfairness in the process, namely, an acceptable amount of unfairness.
The Court of Appeal’s response
When the case went to the Court of Appeal (Chadwick LJ., Jacob LJ. and Neuberger LJ.) the Court took the approach, not taken by Mann J. below, that Mr Macrossan could not complain about the apprehended bias because he had received an unbiased hearing before Mann J. and subsequently by the Court of Appeal itself. That reasoning is perhaps unexceptional, but the surprising feature is that the Court of Appeal also fully endorsed the judgment of Mann J. on the bias issue. This is seen at paragraph 74 of the Court of Appeal's judgment where it said (referring to Mr Macrossan's two main bias complaints - the secret submissions and the internet publications):
"There is nothing in either of them for the reasons given by Mann J."
So the Court of Appeal has effectively confirmed that Patent Office Hearing Officers are perfectly free to receive secret, formal, written submissions in respect of the very issues they are deciding upon. And the Court has also effectively confirmed that Patent Office Hearing Officers are not required when conducting hearings, nor when making decisions following such hearings, to disavow previous public statements by the Patent Office which might reasonably give rise to an apprehension of bias in respect of the very issues for decision in such hearings. This surely cannot be good for the administration of justice.
House of Lords
Mr Macrossan sought leave to appeal to the House of Lords, however, such leave was refused (in a Report of the House of Lords Appeal Committee published on 5 February 2007). It would probably be wrong, however, to assume that such refusal in any way represents approval by the House of Lords Appeal Committee of the Court of Appeal’s stance on the administrative law point as, for tactical reasons and on the advice of his lawyers (see footnote 2 below), including senior counsel, Mr Macrossan did not raise that issue in his petition to the House.
Footnotes
Footnote 1:
References in this article to ‘the Macrossan case’ mean the case as dealt with by Patent Office Hearing Officer Mrs Chalmers in her decision of 22 March 2005 and further as dealt with by Mann J. in the High Court reported at [2006] EWHC 705 (Ch) and further as dealt with by the Court of Appeal reported at [2006] EWCA Civ. 1371 and further as dealt with in the Report from the Appeal Committee of the House of Lords dated 5 February 2007.
Footnote 2:
Mr Macrossan represented himself before the High Court and the Court of Appeal, but had lawyers acting for him in his petition for leave to appeal to the House of Lords.
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