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Full transcript of judge’s luggage rant at British Airways lawyers emerges

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What appears to be court stenographer’s note appears online after Mr Justice Peter Smith stands up for airline passengers everywhere

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A document appearing to be the full transcript of a judge’s bench badgering of British Airways over his lost luggage has emerged.

Fleet Street last week cast the Chancery Court’s Mr Justice Peter Smith — whom The Times newspaper described as “one of the legal profession’s more colourful figures” — as the common air travellers hero after he castigated lawyers for the “world’s favourite airline”.

But the bench-slapping had nothing to do with their submissions in the £3 billion lawsuit Smith was hearing — a spat in which BA was accused of colluding to fix air cargo charges. Instead it related to an entirely unrelated incident which had seen Smith’s luggage go missing on a BA flight during a recent trip to Italy.

Legal Cheek cannot verify the authenticity of the document that is doing the rounds of legal London. However, it appears to be a comprehensive transcript of the court stenographer’s note.

Emerald Supplies Ltd v British Airways

Taking the brunt of Smith’s ire was Jon Turner, a silk of nine years’ standing from Monkton Chambers in Gray’s Inn. As BA’s lead counsel on the day, Turner came in for repeated questioning regarding the loss of Smith’s luggage during his recent trip Florence.

At one stage the judge threatened to haul BA’s pugnacious Irish chief executive, Willie Walsh, before the court to answer some pretty searching questions on the missing luggage front. Sadly that didn’t happen, as it would have been one hell of a bout.

Now, Smith is no stranger to courtroom antics. The judge once famously inserted his own coded message into a judgment he handed down on a copyright case concerning best-selling thriller novel “The Da Vince Code”.

In the most recent case, according to the transcript, Smith repeatedly cross-examined BA’s lawyers about the lost luggage, while, in turn, they desperately tried to bring the proceedings back to the matter of the trial.

In the end, frustrated lawyers, who included the airline’s law firm, Slaughter and May (whose partners presumably know a thing or two about international holiday travel), applied for Smith to recuse himself. The grounds were clear: anyone so arsed off with one of the litigants — no matter how legitimately in a customer service context — would not be able to hear case impartially.

Smith adamantly disagreed, but he stood down nonetheless. He didn’t go quietly, telling the court:

I do not believe for one minute that the reasonably minded observer … would think that merely because I have raised issues over the non-delivery of my luggage of itself should lead to the possibility of bias. I believe a reasonably minded observer would see a judge with a problem trying to resolve that issue and finding the parting question being obstructive and unwilling to address the issue and find a solution. A simple dispute as to the luggage cannot possible be grounds for recusal. However, BA and its solicitors have simply escalated the problem almost immediately.

Nonetheless, Smith saw the writing on the wall in terms of public perception:

I however cannot allow my presence in the case and its difficulties to distract the parties from this case. And therefore, regretfully, I feel that I have no choice, whatever my feelings about it, but to recuse myself from the case …

BA’s legal team will be relieved. The rest of us will still shed a tiny tear as the case of Emerald Supplies Ltd v British Airways is destined to be a damn sight less entertaining than it was a week ago.

Read the judgment in full below:

Emerald Supplies Ltd v British Airways

43 Comments

Denning

Welcome to the big leagues, my son.

(11)(3)

SodsLaw

Christ I didn’t realise he’d been in (sort of) the same situation before, in the Lees Millais case. Wikipedia also tells me that “In 2003 he was voted most unpopular chancery judge in a survey by Legal Business magazine.”

Oh dear.

(5)(1)

Not Amused

I have little love for him generally, but I think we have to look at this as a specific case. It seems to me that the initial opinion of the legal team was just “oh it’s Peter Smith, we don’t want him but he’s broadly disliked so let’s come up with any old flimsy reason”.

The Chancellor rejected their argument. So they were really just trying it on.

They then went on to get what they wanted anyway in a desperate example of arse covering and OTT fuss making. I think it would be entirely appropriate if those individual lawyers now looked a bit sheepish – because you can’t just assume you will get your own way because a judge is unpopular, you do actually still need to, you know, follow the rules.

In future you can always issue in the Commercial Division 🙂

(10)(6)

UCL law grad

“It seems to me that the initial opinion of the legal team was just “oh it’s Peter Smith, we don’t want him but he’s broadly disliked so let’s come up with any old flimsy reason”.”

Not so. They initially requested a reassignment on the basis that Peter Smith, whatever anyone may think about his past conduct, has bugger all competition law experience, and probably isn’t the best guy for the job when you have the likes of Peter Roth kicking about.

“I think it would be entirely appropriate if those individual lawyers now looked a bit sheepish – because you can’t just assume you will get your own way because a judge is unpopular, you do actually still need to, you know, follow the rules.”

Not really. They got Mrs Justice Rose on the case. She is a former chair of the Competition Appeal Tribunal, and a former specialist competition law barrister. I’m sure the claimants and defendants alike are delighted.

(11)(3)

Not Amused

Their initial arguments were all rejected by a highly respected lawyer – the Chancellor. So their arguments were weak. That would embarrass me.

They only ‘won’ because of the omnishambles they made of the entire affair – so I think they should have the decency to blush

(3)(11)

Anonymous

“They only ‘won’ because of the omnishambles they made of the entire affair – so I think they should have the decency to blush”

They succeeded in getting a judge, showing every indication of apparent bias to the detriment of their clients, off the case. That they tried to get him off the case earlier is neither here nor there, really.

I say well done to them, no?

(16)(2)

Anonymous

The threat to summons the Chief Exec to account for his lost luggage was disgraceful.

(12)(4)

Jimbo

I wonder whether the actuaries calculating litigation risk have a Smith J multiplier…

(16)(0)

Mr Whemmick

Smith is a joke.

His belligerant ventilation of a purely personal dispute into the case was outrageous.

As always, Not Amused has it 100% wrong…

(19)(4)

Anonymous

Agree.
Usual off the mark diatribe from NA.

(8)(0)

Anonymous

Has anyone considered that Smith could be NA…

(3)(0)

Anonymous

I don’t think it would be worth ‘outing’ NA, but so far we know:

1. He has children.
2. He is a barrister.
3. He practices commercial law.

My speculation:

1. Member of the Garrick.
2. Practices international arbitration.
3. Is a QC (but also possibly not given past scathing criticism of the application process).
4. Is a Tory
5. Does a lot of volunteering giving poor kids career advice.
6. Is, or was, a regular on RoF.

Actually, it’s not even certain NA is a man. Anyway. I don’t think a judge would necessarily have the flexibility of schedule to sit on LC all day so probably still a bazza.

(4)(1)

Anonymous

NA outs himself continuously because he rants about his pet peeves in person as well as online. You’d know if you met him. He’s not a QC.

(2)(0)

Anonymous

NA is also not a commercial practitioner – there’s no such thing as the “Commercial Division”.

The Commercial Court is part of the QBD

(0)(0)

Homey

Golly I wonder what was in the luggage. Diamonds?

(4)(0)

Anonymous

The approach of the judge is patently absurd.
Imagine – just imagine for a second – an advocate behaving in this way.
The judge would interrupt and say ‘Mr/s X it is not appropriate for you to take this matter up inter-parties as part of the case (etc.)’
I have read the transcript. It is also not appropriate for the judge to sign off his private emails about his personal problem to the airline in his judicial capacity. That is effectively a ‘do you know who I am – don’t mess with me’ approach – and is an OJC no-no.
I think it is extraordinary behaviour which plainly – as his ire shows – there is the demonstrable risk of bias. He is furious with BA for personal reasons = thereafter risk of bias.
His whole approach to this issue demonstrates a profound lack of judgement. Bit worrying in a judge.

(8)(0)

Lethargic Bystander

Line 20 on page 10 translates to “F*** off” in ordinary English.

(1)(0)

Not Amused

Sad that the rest of you can’t put aside your dislike of Peter Smith in order to analyse this properly. Bodes ill for the Bar …

– spurious argument presented
– Smith rejects spurious argument
– spurious argument appealed
– Chancellor rejects spurious argument
– complete omnishables ensues
– Smith (rightly, albeit eccentrically) recuses himself due to omnishambles not due to spurious argument

I find it hard to condemn Smith or to see the lawyers involved (who spent an awful lot of their clients’ money creating this mess) come across well. Failing to properly analyse the facts and just condemning because you don’t like Smith is err … exactly the same type of prejudicial bias you accuse Smith of having …

(7)(13)

Anonymous

Probably best and most realistic comment I have read on the topic.

(0)(1)

Not Amused

Come to think of it … leaking the transcript to the press is hardly something I would expect of decent lawyers.

(2)(6)

Anonymous

NA has TOTALLY lost it.

(9)(0)

Not Amused

I’ve merely been forced in to the unenviable task of defending Peter Smith …

(2)(7)

Sappho

Get a job, NA.

(9)(2)

Anonymous

They hardly needed to leak it – the transcription provider will sell it to anyone willing to pay £20 (in the usual way).

(1)(0)

Anonymous

I can picture it now –
Jerusalem triumphantly playing in the background as NA emerges saint like riding to Smith J’s rescue :
‘If it falls to me to start a fight to cut out the cancer of bent and twisted lawyers in our country with the simple sword of truth and the trusty shield of British fair play, so be it. I am ready for the fight.’

(5)(0)

Not Amused

It is not to be thought of that the Flood
Of British freedom, which, to the open sea
Of the world’s praise, from dark antiquity
Hath flowed, ‘with pomp of waters, unwithstood,’
Roused though it be full often to a mood
Which spurns the check of salutary bands,
That this most famous Stream in bogs and sands
Should perish; and to evil and to good
Be lost for ever. In our halls is hung
Armoury of the invincible Knights of old:
We must be free or die, who speak the tongue
That Shakespeare spake; the faith and morals hold
Which Milton held.-In every thing we are sprung
Of Earth’s first blood, have titles manifold.

(5)(3)

Anonymous

Confirmed – NA is Rumpole.

(5)(0)

Anonymous

Now – what did I tell you.
Right on cue.

(1)(0)

Mr Whemmick

No wonder Not Amused has got so much time on his hands to write such patent tosh on here…

His judgment is so clearly lacking that no right-thinking Solicitor would ever instruct him for even a possession case at Noddington County Court…

(3)(1)

Anonymous

Wait for NA reply –
‘Oh I am in the Supreme Court all the time’

(1)(0)

CumLaudly

I always thought that Peter Smith was like the High Court version of DJ Samuels (of Mayors and City). Neither of them would let people make submissions without interrupting. And I think they both had moustaches. Might even have been the same moustache, given that I never saw the two of them in the same room at the same time.

Putting the moustaches to one side, the short point is that a judge should never bring his personal baggage into the courtroom.

(4)(0)

Anonymous

You have missed the point here…..BA had lost his personal baggage

(2)(0)

Anon

So now we know who NA actually is: Peter Smith J!
Seriously though, it was not counsel or solicitors who created the ‘omnishambles’ – it was the judge’s disgraceful letter to the Chief Exec.

(3)(0)

Anonymous

I thought Turner behaved impressively. It would have been easy to have a row with the Judge and he resolutely refused to do so.

I think the Judge’s email (and I do like him and enjoy appearing before him) justified the application. If you say ‘this type of behaviour looks like what I’m trying against you at the moment’, then that not only mixes your dispute with the case, but it also moves into giving evidence.

However, it was also clearly capable of being dealt with before an application to recuse was made. That application could have been a last resort, instead of a first. There doesn’t seem to have been much, if any, attempt to calm down a man who was clearly very upset at the time when he wrote his email. The underlying theme – which the Judge didn’t go to – was that the Judge was too emotional to disengage his own experience from the issues in the case. That was never tested.

Ultimately, the people I think behaved most badly are BA. They didn’t strike me – as a purely lay observer – as being interested in solving a customer dispute. Instead they dodged it and sought an advantage to themselves in doing so. Which is why, after I take the flights I’ve already booked with them next month, I shall try and avoid them in future.

(1)(0)

Simon Myerson QC

Sorry – the above Anonymous is me. Don’t know why the site suddenly lost my identity.

(2)(0)

Not Amused

Yes, I think I agree with you. By the time of the hearing at which Smith recused himself (22nd July) there really was no other option (and this is why the transcript and judgement look so bad; by that time it was) – it’s just that the earlier stages, and particularly the immediate move to seek recusal on a spurious ground, was poorly handled.

A cynic might even say that BA’s position was “oh goody, Peter Smith, here comes an opportunity to delay trial”.

(0)(0)

Anonymous

Don’t you just love NA’s mettle – the letters Q and C appear =
Instant capitulation.

(0)(0)

Simon Myerson QC

That’s not fair. He may be Occupy the Inns but he doesn’t roll over for silks.

(0)(0)

Anonymous

Well ok, shall we say NA is ‘challenged’ in the consistency department then. It must be that NA’s seeming capitulation at this point is merely wholly coincidental;
cf. 29 July 3.27pm.

(1)(0)

Anonymous

See the article in the Guardian in LC’s ‘Morning round-up: Friday 31 July’
Has it absolutely bang-on (NA prepare not to like!)

(0)(0)

Digital Warrior

Alright, enough blabbering you digital warriors…people simply wanna know what was in the luggage.

(1)(0)

Not Amused

I think he said in the transcript – it was medicine that he wasn’t allowed to take as hand luggage because it had been opened.

(0)(0)

Outraged of Lower Slaughter

All this is reminiscent of Smith’s refusal to recuse himself in a case where Addleshaws represented a party and the application was made by AG on the basis that it and Smith had recently failed to reach agreement for him to join as a consultant (not least, rumour had it, as he was seeking £750K p.a.). The CA allowed AG’s appeal, giving Smith a pasting in the process.
This buffoon has no shame, no sense of professional judgement and is a disgrace to the Bench. As with Jeremiah Harman some years ago, he should be told to resign or face a motion before Parliament for his removal – Harman had the good sense to resign.

(0)(2)

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