Recovering from operation
A judge who heard an optician’s disciplinary appeal from his bed just a day after returning from hospital should have left the case to someone else, the Court of Appeal has ruled.
Richard Clayton KC, sitting as a deputy High Court judge, was recovering from surgery on a ruptured Achilles tendon when he conducted the remote hearing in November 2024. He had been told he could not stand for eight days but, having cleared the arrangement with senior court staff, decided to press ahead.
The judge told the parties he was “sitting prone in bed”, making it difficult to navigate the PDF bundles, before admitting that holding his computer was making it impossible to take notes.
The case concerned an optometrist, who had been suspended for nine months by the General Optical Council following findings of serious misconduct involving dishonesty. Judge Clayton dismissed his appeal, but the optometrist challenged the decision on the basis that procedural irregularities had made it unjust.
In a judgment handed down this week, Lord Justice Phillips commended the judge for his willingness to hear the case while recovering from injury and his “fortitude in doing so in bed, in trying circumstances”. But he said the judge should not have taken on the hearing, given there was no great urgency and alternative arrangements could have been made.
Phillips LJ said:
“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.”
The ruling reveals that Judge Clayton had admitted the hearing was “testing my stamina significantly” and, towards the end, requested a five-minute break after telling the parties he was getting tired. He later apologised for the difficulties, explaining that it had been “quite tricky but not impossible” to conduct proceedings largely from a non-sitting position.
Despite the unusual setup, the Court of Appeal found that the judge had remained fully engaged with the material and arguments throughout the hearing. Phillips LJ said there was no injustice to the optometrist, noting that judges frequently encounter cases that prove more demanding than expected.
Judge Clayton read out a draft judgment 16 days after the hearing, but the final written version did not arrive until March 2026, some 16 months later, despite repeated emails from the parties chasing it.
Phillips LJ described the unanswered emails as “unacceptable” and said the practice of reading out draft judgments orally should be discouraged because it risked causing confusion. Even so, the court concluded that the delays had not caused the optometrist an injustice sufficient to justify overturning the decision.
The Court of Appeal refused permission to appeal.