How judge who was kicked off British Airways competition case used a hearing to subject airline's legal counsel to barrage of questions

The behaviour of Mr Justice Peter Smith has now been revealed in full after a transcript of the court exchanges was posted online

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The Independent Online

It was the case that stunned the legal profession: a High Court judge who used a hearing in a £3 billion dispute involving British Airways to repeatedly press the airline on the question of what had happened to his lost luggage.

The behaviour of Mr Justice Peter Smith, who reluctantly agreed to step aside from the case last week after BA’s lawyers complained of “a real risk of bias”, has now been revealed in full after a transcript of the court exchanges was posted online.

The document, which The Independent has confirmed is accurate, shows how the judge subjected the airline’s legal counsel Jon Turner QC to a barrage of questions about the whereabouts of his luggage, which had been mislaid during a trip to Florence with his wife.

“Right, Mr Turner, here is a question for you. What happened to [the] luggage?” the judge asks a few minutes into the hearing. When the QC replies that his clients do not want to get involved in the issue, he shoots back: “In that case, do you want me to order your chief executive to appear before me today?”

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Justice Peter Smith emailed the BA chairman personally to complain about his lost luggage. File photo (Getty)

After Mr Turner delicately suggests that doing so would be “an inappropriate mixture of a personal dispute” with the multi-billion pound case, the judge cuts him off. “What is inappropriate is the continued failure of your clients to explain a simple question: namely, what happened to the luggage? It has been two weeks since that happened now,” he says.

A lengthy debate follows, culminating in Mr Justice Smith darkly suggesting that BA is fighting to have him recused because the airline is worried that the case is not going in its favour. “The next judge might not be on your solicitors’ acceptable judge list,” he says.

After a break in which Mr Turner contacts his instructing solicitor – before regretfully informing the judge that “she does not know what has happened to your luggage” – Mr Justice Smith says he has “no alternative” but to recuse himself.

A spokesman for the Judicial Conduct Investigations Office, which handles complaints about the judiciary, said that Sir Peter was being “investigated under the conduct regulations”. Mrs Justice Vivien Rose has been appointed to hear the case in his place.

The remarkable courtroom exchanges took place during one of the biggest competition battles to reach the UK courts. The case stems from a European Commission ruling that BA and a number of other airlines colluded to fix air cargo charges, with the firms now being sued by hundreds of companies for losses and damages.

 

Will Gant, a reporter for the specialist legal magazine PaRR, witnessed the judge’s outburst. “I’ve been a court journalist for several years, and must have seen thousands of hearings, but frankly I was absolutely blown away by the unprofessional attitude that Mr Justice Peter Smith displayed at this one,” he told The Independent.

“The room was packed with dozens of lawyers, and two or three reporters from specialist legal publications, and as this unfolded we all silently exchanged looks of complete amazement. I’ve never seen a judge allow their personal life to affect their work like this, and it was sad to watch. It was an embarrassment to British justice.”

Another source familiar with the case added: “Frankly, it’s the sort of thing you might expect in other areas of the world, but not here.”

In a parting shot, Mr Justice Smith then used a written judgment to chastise BA still further, suggesting that his luggage and that of his fellow passengers had been “deliberately bumped off for a more profitable cargo”. He had emailed BA’s chairman, Keith Williams, because he felt the incident “might be something that is strikingly similar to some of the allegations in this case”, he wrote.

He continued: “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.” He also warned BA that he would continue his investigation into what happened to the bags “in a private capacity” and “with the vigour for which I am known”.

Both British Airways and its legal advisers, Slaughter & May, declined to comment.

Court records: Out of order

According to a transcript, Mr Justice Peter Smith repeatedly harangued the British Airways barrister Jon Turner QC about what happened to his missing luggage. Here are some edited extracts:

Mr Justice Peter Smith: Right, Mr Turner, here is a question for you. What happened to [the] luggage?

Jon Turner: My Lord, the position remains that set out in the letter from Slaughter and May of 15 July, that we are not dealing with that as parties in these proceedings.

PS: I am asking you: what has happened to the luggage?

JT: My Lord, so far as the parties to these proceedings … are concerned, we have said, and we maintain, that we are not getting involved because we trust that that will be dealt with expeditiously, in the ordinary course of events.

PS: In that case, do you want me to order your chief executive to appear before me today?

JT: I do not wish your Lordship to do that; and I would say, if your Lordship will permit me to develop my submissions, that that would be an inappropriate mixture of a personal dispute ...

PS: What is inappropriate is the continued failure of your clients to explain a simple question, namely, what happened to the luggage? It has been two weeks since that happened now....

JT: Our position, my Lord, is that where your Lordship initiates a personal dispute with British Airways…

PS: I didn’t initiate a personal dispute. BA’s associated company retained my luggage. It is not my fault that that happened. I am the victim. I read the whole of your correspondence. The more I read it, I got the impression that BA was trying to portray itself of the victim of this case and being oppressed by wicked Mr Justice Peter Smith. It is just ridiculous...

PS: As far as I am concerned, the key fact in this case is: what happened to the luggage; and your clients know what happened to the luggage and they are not telling me. And your solicitors and you are deliberately not asking...

PS: If there is a perfectly understandable operational reason as to why the whole of the flight’s luggage was left behind in Florence ... then I will accept that. That has been my stance ever since I contacted the chairman. I contacted the chairman because the BA helpline is misdescribed. Because when I contacted them, they said, “It is nothing to do with us, it is down to Vueling [BA’s Spanish partner airline]”, despite the fact that I booked my flight with BA and BA took my money. The Vueling helpline was even worse. They couldn’t even tell me where the luggage was till it, without warning, spontaneously arrived at my house last Thursday. In those circumstances, I went to the BA website and the BA website says the chairman is anxious to have comments from customers, and there is his email address, so I sent him an email. Apparently he likes reading customers’ emails. It doesn’t appear to be necessarily he does anything about it, but he obviously likes reading them over his breakfast...

PS: BA as a group, as a company in a group, clearly know what happened to the luggage, because ... they cannot have accidentally left the whole of the flight’s luggage off the plane, can they? I mean, I am intrigued. It might be for some reason they only had three gallons of fuel in the plane, it would run out unless they took everything off, which is a bit difficult because the plane was actually being refuelled when we got there. But equally, it is impossible to believe that the pilot, who has to sign the documentation as to what is the weight and composition of the weight in the plane, did not know that his hold was empty; and it is equally impossible for the ground staff not to know that the luggage was not there. These are things which, I accept, I am struggling to find a rational explanation for.