London -
It was the case that stunned the legal profession: a High Court judge who used a hearing in a £3bn 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 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.
The judge mentioned his own luggage 33 times in the single hearing, the transcript shows.
“Right, Mr Turner, here is a question for you. What happened to [the] luggage?” the judge asks just a few minutes into the session.
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?”
After Mr Turner delicately suggests that doing so would be “an inappropriate mixture of a personal dispute” with the multibillion-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 ... now,” he says.
A lengthy debate follows, culminating in Mr Justice Smith suggesting BA is fighting to have him recused - excluded from the case - 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.
The judge also reveals that he has emailed the BA chairman personally to complain about his lost luggage.
“Apparently he likes reading customers' emails. It doesn't appear ... he does anything about it, but he ... likes reading them over his breakfast,” he says.
After a break in which Mr Turner contacts his instructing solicitor - before informing the judge that “she does not know what has happened to your luggage” - Mr Justice Smith says he has “no alternative” but to step down from the case.
A spokesman for the Judicial Conduct Investigations Office, which handles complaints about the judiciary, said yesterday that Sir Peter was being “investigated under the conduct regulations”.
Ms 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 said.
“The room was packed with dozens of lawyers, and two or three reporters from legal publications, and as this unfolded we all silently exchanged looks of 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.”
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”.
Both British Airways and its legal advisers, Slaughter and May, declined to comment.
The Independent