Today’s Times has a piece by Lord Pannick QC (behind the Times paywall) on the extraordinary behaviour of Mr Justice Peter Smith in a case involving British Airways earlier this summer. The case, he says,
raises serious issues about judicial conduct which need urgent consideration by the Lord Chief Justice.
The case was reported on at the time by the Independent and was explained by Rupert Myers in the Guardian:
When Mr Justice Peter Smith sat in the high court on a case involving British Airways and demanded to know what had happened to his bags on a recent romantic trip to Florence, he had unusual powers that the rest of us do not possess. Injudiciously, he threatened to use them. Smith even entertained the idea of summoning British Airways’ chief executive to explain the mishap in a competition case heard at vast expense. The judge was finally invited to realise that his remarks left him completely unsuited to hearing the case.
The transcript of the hearing was published by Legal Cheek.
Lord Pannick writes that there are three “troubling features” of this “unhappy episode”. First, Peter Smith J’s personal irritation made it impossible for him to act fairly. Second, what Pannick calls the judge’s “inexcusably bullying manner and threats”. And third—
the judge’s arrogant comments concerning the decision of the Court of Appeal in 2007 to remove him from an earlier case in which he had been unable to recognise that his personal interests made it inappropriate for him to sit …
Here’s the the Court of Appeal judgment in that earlier case, Howell v Lees Millais, in which Sir Igor Judge had said (para. 32)
The application to Peter Smith J to recuse himself was entirely justified … His irritation is obvious … It arose exclusively and directly from the judge’s personal affairs …
Legal Cheek’s transcript of this summer’s hearing quotes Peter Smith J as saying about that earlier case—
I have no regrets about Millais. I have plenty of regrets about the way in which the Court of Appeal went about their decision, but … we are no longer surprised by what happens in the Court of Appeal.
Pannick concludes today’s Times piece by saying:
On hearing about this latest episode, no-one at the bar or on the bench would have said, “What, Mr Justice Peter Smith? Surely not?” Litigants are entitled to a better service than this. The reputation of our legal system is damaged by such behaviour. The Lord Chief Justice should consider whether action to address Mr Justice Peter Smith’s injudicious conduct has, like his luggage, been delayed for too long.
This was the reaction this morning from Dinah Rose QC—
Lord Pannick annihilates Peter Smith J in today’s Times. His verdict: “the reputation of our legal system is damaged by such behaviour.”
— Dinah Rose (@DinahRoseQC) September 3, 2015
and this afternoon from UCL’s Professor of Law and Professional Ethics, Richard Moorhead—
So David Pannick essentially calling for High Ct J Peter Smith to resign in today’s Times. Very blunt end to piece
— Richard Moorhead (@RichardMoorhead) September 3, 2015
This judge’s behaviour is reminiscent of the sort of conduct you expect of local courthouse judges in the USA, especially the type who get elected. Not in an entirely bad way, though. He seems to have been trying to hold the powerful to account, but perhaps not recognising or admitting that he represents, not the wronged little guy with the missing bag, but the much more powerful state apparatus of which he is part.
I believe that the matter is before Judicial Complaints. No doubt the LCJ is awaiting the outcome of that process.
[…] In a newspaper column, Lord Pannick QC commented that Smith’s behaviour toward British Airways in that case damaged the reputation of the legal system. Pannick called on the lord chief justice to consider whether action to address Smith’s “injudicious conduct has, like his luggage, been delayed too long”. Smith’s reaction was to ring up the head of Blackstone Chambers, of which Pannick is a leading member. Smith followed this up with a letter, which he had hoped to keep confidential, in which the judge told Blackstone he would no longer support its members who were seeking promotion to become QCs. “It is obvious that Blackstone takes but does not give,” said Smith. And why was that relevant? It was because the prince was represented by two QCs from Blackstone Chambers, and it was only after Smith had read Pannick’s article that his clerk started typing up his ruling in the Harb cases. […]
[…] In a newspaper column, Lord Pannick QC commented that Smith’s behaviour toward British Airways in that case damaged the reputation of the legal system. Pannick called on the lord chief justice to consider whether action to address Smith’s “injudicious conduct has, like his luggage, been delayed too long”. Smith’s reaction was to ring up the head of Blackstone Chambers, of which Pannick is a leading member. Smith followed this up with a letter, which he had hoped to keep confidential, in which the judge told Blackstone he would no longer support its members who were seeking promotion to become QCs. “It is obvious that Blackstone takes but does not give,” said Smith. And why was that relevant? It was because the prince was represented by two QCs from Blackstone Chambers, and it was only after Smith had read Pannick’s article that his clerk started typing up his ruling in the Harb cases. […]