A judge was wrong to hear a case from his bed via video link while recovering from surgery, the court of appeal has said.
Richard Clayton KC, sitting as a deputy high court judge, heard an optician’s appeal against a finding of serious misconduct from bed the day after returning from hospital where he had undergone an operation for a ruptured achilles tendon.
Clayton dismissed Suleman Patel’s appeal against a nine-month suspension imposed by the General Optical Council but Patel took the case to the court of appeal. Patel claimed: “The general handling of the appeal by [Clayton] … has not been dealt with to the standard to be expected of the court such that the judgment is not reliable.”
In a judgment published on Tuesday, and first reported by the news website Legal Futures, Lord Justice Phillips, sitting with Lady Justice Falk, rejected Patel’s appeal but said Clayton should not have heard the case from bed.
Phillips wrote: “The deputy judge is to be commended on his willingness to hear a case whilst recovering from injury and his fortitude in doing so in bed, in trying circumstances. However, I consider that, save in exceptional circumstances, such as great urgency or where a matter can only be heard by a specific judge, a judge should only undertake a hearing (and a hearing should only be listed before them) when they have the essential tools to undertake the task properly and professionally….”
He added: “Although it did not cause any injustice in the present case, in my judgment the deputy judge should not have sat on the present case whilst encumbered by his injury. There was no great urgency and other arrangements could and should have been made. I do not say that a judge should never undertake a hearing whilst in bed or otherwise than at a desk or table, but it should be a last resort, where the matter cannot sensibly be listed before a judge sitting in the conventional way.”
While hearing the case, Clayton said he was “sitting prone in bed, which makes it pretty difficult, I suspect, for me to navigate some of the PDF bundles. I have, however, read all the relevant material … We will just have to see how we go.”
He later said: “This has turned out to be far more difficult, I’m afraid, than I had anticipated because I am handicapped by an ability [sic] to write anything down.” However, at several points thereafter the transcript recorded him saying he was taking a “proper note” of what was being said.
During the hearing, Clayton said the hearing was “testing my stamina significantly” and at the end apologised “for the problems at the beginning”. He explained that “it has been quite tricky but not impossible to deal with the hearing largely from a non-sitting position”.
Clayton said he had been advised he could not stand for eight days after leaving hospital, was taking paracetamol and had “cleared the position with the senior staff at the administrative court”.
