Clayton: Pictured upright
A judge laid up at home in bed after surgery on a ruptured Achilles tendon should not have heard an optician’s disciplinary appeal by video, the Court of Appeal has ruled.
Judges should only hear cases from bed “as a last resort” when the matter “cannot sensibly be listed before a judge sitting in the conventional way”, it said.
Lord Justice Phillips said [1] the decision of Richard Clayton KC, sitting as a deputy High Court judge, to hear the appeal remotely from bed “did not cause any injustice in the present case” but he “should not have sat on the present case whilst encumbered by his injury”.
Phillips LJ said Judge Clayton – who has sat since 2012 – was “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.
“In addition to ready access to the documents in the case (electronically and/or on paper), those must include proper working space and an ability to make electronic or written notes without impediment.
“That is necessary both so that the judge can properly perform their function, but also so that they are seen to be able to do so.”
This meant the deputy judge should not have presided over this case – there was no great urgency and other arrangements “could and should have been made”.
Phillips LJ went on: “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.
“Even then, of course, a judge should not sit if they are suffering from illness or infirmity that impairs their ability to hear the matter fairly and properly.”
The Court of Appeal heard that the General Optical Counsel suspended Suleman Patel for nine months in January 2024, having found him guilty of serious misconduct involving dishonesty.
In November 2024, Judge Clayton heard Mr Patel’s appeal remotely and ultimately dismissed it.
Mr Patel applied to the Court of Appeal for permission to appeal on the sole ground that the decision was “unjust because of procedural irregularity”.
Returning from hospital the previous day, the judge had been told he could not stand for eight days and was taking standard painkillers.
At the start of the hearing, Judge Clayton told the parties 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”.
Towards the end of hearing, he admitted “getting tired” and the court adjourned for a five-minute break.
At the end, Judge Clayton apologised for the problems at the beginning and explained that “it has been quite tricky but not impossible to deal with the hearing largely from a non-sitting position”.
At a further remote hearing 16 days later, Judge Clayton read out a draft oral judgment, although the final written version was not produced until March 2026.
The Court of Appeal rejected the contention that the judge was not in a fit state to cope with the hearing.
“In my judgment the transcript shows that the deputy judge was fully engaged with the materials and the arguments throughout the hearing and had a full grasp of them,” said Phillips LJ.
“A draft judgment was given shortly after the hearing, of which no substantive criticism is being made. Even though the circumstances of the hearing were unusual and certainly less than ideal, I see no injustice to Mr Patel in what occurred at the hearing.”
The delay in providing a written judgment also did not cause Mr Patel injustice.
“The deputy judge gave reasons orally within 16 days of the hearing. Whilst there is no note of the precise terms of those reasons, it has not been suggested that they differed in substance from the draft judgment found on Westlaw [in late 2025] or the final version handed down on 17 March 2026.
“Further, Mr Patel is not in a position to assert an error in the final judgment, and certainly none that has resulted from delay.”
However, Phillips LJ was critical of the delay in finalising the ruling, while it was also “unacceptable that repeated emails from the parties to court” about this went unanswered.
He added too that “the practice of reading out a draft judgment orally, which I have not come across before, should be discouraged as it is apt to lead to confusion, as it did in the present case.”
He dismissed Mr Patel’s appeal. Lady Justice Falk agreed.