CoA orders retrial in Harb v HRH Prince Abdul Aziz Bin Fahd, but clears controversial high court judge of bias
Master of the Rolls Lord Dyson, Lord Justice Moore-Bick and Lord Justice McFarlane — ruling in the case of Harb v HRH Prince Abdul Aziz Bin Fahd, in which Smith originally presided over — took the opportunity to have a pop at the outspoken judge’s behaviour.
The judges describe the letter — in which Smith states he “will no longer support” elite London set Blackstone — as showing “a deeply worrying and fundamental lack of understanding of the proper role of a judge”.
Continuing, in a judgment published today, the court said:
What makes it worse is that it comes on the heels of the BAA baggage affair. In our view, the comments of Lord Pannick, far from being ‘outrageous’ as the judge said in the letter, were justified. We greatly regret having to criticise a judge in these strong terms, but our duty requires us to do so.
The incredible missive (pictured in full below) — which Legal Cheek obtained courtesy of leading legal journalist Joshua Rozenberg last month — was penned by Smith in 2015, in response to an article published in The Times (£) by Blackstone’s David Pannick QC. The article was particularly critical of Smith’s handling of an unrelated case.
However, despite the inappropriate letter, the Court of Appeal has today ruled that Smith was not biased when he made his judgment in the case of Harb v HRH Prince Abdul Aziz Bin Fahd. Ordering a retrial nonetheless, the court did say that Smith had “failed to examine the evidence and the arguments with the care that the parties were entitled to expect”.
Addressing the allegation of bias specifically, the court, describing Smith’s conduct as “regrettable”, continued:
We have little doubt that most, if not all, litigants represented by a member of Blackstone Chambers, knowing of the article, would prefer to have their case heard by another judge. We are prepared to accept that some, indeed many, might have very strong feelings on the subject.
We think it fanciful to suppose that the judge made major changes to his assessment of the evidence simply as a reaction to the article or that his decision on the agency issue owed anything to a bias against the Prince.
But Smith isn’t out of hot water just yet. Taking to Twitter this lunchtime, Rozenberg questioned how Smith could “continue” as a judge following such criticism from the Court of Appeal.
How can Peter Smith J continue with this finding against him? https://t.co/oXFBhN2v7t “Disgraceful letter” shows he doesn’t understand job.
— Joshua Rozenberg (@JoshuaRozenberg) June 16, 2016
The Smith saga rumbles on.