The court established that judicial impartiality is essential for a fair trial, and excessive judicial intervention may justify a new trial.

Introduction

[1] At the High Court, the plaintiff filed an action against the defendant for infringement of the plaintiffs patent. The plaintiff sought a declaration, injunctive orders, account, damages to be assessed, aggravated damages and exemplary damages. In response, the defendant counter-claimed for a revocation of the patent and a declaration of non-infringement. After a full trial, the learned judge dismissed the plaintiffs claim and allowed the defendant's counterclaim. This is the plaintiffs appeal against the decision of the High Court. In this judgment the parties shall be referred to as they were in the Court below.

[2] Having had the benefit of perusing the appeal record, the written judgment of the High Court and the comprehensive written submissions of both parties, we invited learned counsel for the plaintiff and defendant respectively to address us on the first issue relating to unfair judicial treatment. If we found no merit on the first issue, we would then proceed to hear counsel on the remaining issues.

[3] We adopted this course of action because in the event a new trial was ordered, we do not think that it would be proper for this Court to rule on the other issues which relate to questions of mixed fact and law. These issues would be for the trial judge at the new trial to rule on.

[4] After hearing of submissions of counsel, we were of the unanimous opinion that the plaintiffs complaint of unfair judicial treatment was made out; and that in the particular circumstances of this case we were constrained to order a new trial before another judge. Consequently, the order of the High Court was set aside with no order as to costs. We now give our reasons for our decision.

Submissions

[5] Learned counsel for the plaintiff submitted that plaintiff did not have a fair trial. During the course of the hearing the trial judge had consistently interrupted and interjected in the examination of the plaintiffs witnesses PW1 and PW2. In particular, the trial judge also made it clear at the beginning of the hearing that she disbelieved the plaintiffs witnesses. The trial judge also made unwarranted adverse comments against PW1 and PW2 in the course of their testimonies given them enormous pressure and fear affecting their ability to testify and making it difficult for the plaintiff to present its case. The trial judge also pre-judged the case almost at the beginning of the hearing when PW1 was giving his evidence in chief. As such the trial judge had descended into the arena when she ought not to have done so.

[6] To support his arguments, learned counsel alluded to the notes of proceedings where the trial judge was manifestly unfair and hostile towards the plaintiff's witnesses. As such, the trial judge had transgressed the core principle that a judge remains neutral during the proceedings.

[7] In reply, learned counsel for the defendant conceded that the trial judge's conduct was condescending but added that the defendant's witnesses were also chided. However, the trial judge allowed the evidence to come through the witnesses throughout the 5 days of hearing. The trial judge's comments in English were directed at the plaintiff's counsel and not at the plaintiffs witnesses who did not understand English. At any rate, the plaintiff's evidence was poor and the plaintiff did not apply for the trial judge to be recused. The plaintiff was not prevented from producing evidence at the hearing. As such, the trial judge's conduct and her remarks did not int