Screwball High Court judge in England threatens barristers over silk appointments following critical letter in The Times ... Court of Appeal says judge's conduct is "shocking ... disgraceful ... deplorable" ... Pannick stations
Smith: bullying judge with a mustache
JUSTICE Peter Smith is a well known High Court judge in the UK.
He was the one who put a secret message into his judgment in the The Da Vinci Code copyright case. He also had to step aside from hearing a case about price fixing for air cargo in which British Airways was a party. He had repeatedly bullied counsel for the airline over the quite separate issue of the temporary loss of his luggage on a flight from Florence to London.
See: Emerald Supplies v British Airways
His behaviour in the British Airways case prompted Lord Pannick QC, from London's Blackstone Chambers, to write an article in The Times, which gave Smith a good spray. It's worth reading, so here it is:
"On July 22, 2015, Mr Justice Peter Smith stood down from hearing a complex commercial case in which British Airways is a defendant. The airline asked the judge to recuse himself after a dispute about what happened to the judicial luggage on a trip home from Florence. How we laughed. But the case raises serious issues about judicial conduct that need urgent consideration by the Lord Chief Justice ...
The judge sent a number of emails to the chairman of BA complaining about the incident. He said there was 'plainly a deliberate decision to leave a whole flight's luggage behind'. He suggested that lucrative commercial freight may have been loaded 'at the expense of passengers who could go to hell at the expense of profits'. BA applied to the judge to recuse himself because the case against the airline that he was hearing raises allegations similar to those he was making, and conclusions similar to those he was asserting, in the correspondence.
The transcript of the recusal application is extraordinary. Jon Turner, QC, for the airline, began by politely stating his client's concern. The judge intervened: 'Right, Mr Turner, here is a question for you. What happened to the luggage?' Mr Turner responded that his clients would deal with such a personal complaint in the ordinary course of business and not in these proceedings. The judge was not satisfied: 'In that case, do you want me to order your chief executive to appear before me today?'
Mr Turner patiently replied (his submissions were a model of courtesy and focus in very difficult circumstances) that if the judge would permit him to develop his argument he would contend 'that that would be an inappropriate mixture of a personal dispute ...' The judge interrupted: 'What is inappropriate is the continued failure of your clients to explain a simple question, namely what happened to the luggage?' After a lot more of this, the judge reluctantly agreed to stand down from the case. He said that there were no grounds for BA's application but its 'attitude' left him with no alternative.
There are a number of troubling features about this unhappy episode. First, the transcript repeatedly confirms what the judge refused to acknowledge: that his personal irritation (perhaps justified) was affecting his judicial responsibilities and made it impossible for him fairly to hear the BA proceedings. The judge said in his judgment that he wanted answers from BA simply because if there were an innocent explanation for the delayed luggage, then he could put the incident to one side and hear the case. But BA's concern was the strong allegations and concluded views expressed by the judge on personal issues similar to those raised in the litigation. In any event, if BA had offered an explanation for his treatment, was the judge to rule on its adequacy?
Second, there is the inexcusably bullying manner and threats: 'What has happened to the luggage? ... I will rise until 12.45 and you can find out ... Do I have to order you to do it, then? ... I shouldn’t make any preparations for lunch because you are going to be sitting through.'
Third, there are 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 in judgment. Mr Turner, QC, referred to the case for the legal principles. Mr Justice Peter Smith responded that he had 'no regret' about his decision, but 'plenty of regrets about the way in which the Court of Appeal went about their decision', but he was 'no longer surprised by what happens in the Court of Appeal'. That was a case where Sir Anthony Clarke, MR, described Mr Justice Peter Smith's conduct of the proceedings as 'somewhat extraordinary' and 'intemperate'. Sir Igor Judge added that Mr Justice Peter Smith's conduct of the hearing demonstrated that he 'had become too personally involved in the decision he was being asked to make to guarantee the necessary judicial objectivity'. Mr Justice Peter Smith was not listening.
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."
Pannick: letter caused Smith to blackball Blackstone Chambers. Pic © Michael Waller-Bridge
Three months later the judge wrote to one of the two joint heads of Blackstone Chambers, Antony Peto QC:
"I refer to our conversation a couple of weeks ago. I am disappointed not to have heard from you.
The quite outrageous article of Pannick caused me a lot of grief and a lot of trouble. I will be taking that up with the requisite authorities in due course.
You said that you would get back to me and you have not. This has meant even more trouble for me because his article has been used as the basis for several lay people to make complaints about me. Fortunately he has never appeared in front of me so his opinion is not worth the paper it is printed on. It has caused me great difficulties in challenging it but fortunately again I have letters of support from no less than 24 silks, 4 High Court Judges and 1 Court of Appeal Judge all of whom appeared in front of me and do not share his views of my abilities and the way I perform in court. Some of the letters have been extremely critical of Pannick's article. Others have commented adversely in terms I would not wish to print.
The article has been extremely damaging to Blackstone Chambers within the Chancery Division.
I am extremely disappointed about it because I have strongly supported your chambers over the years especially in silk applications. Your own application was supported by me and was strongly supported by me to overcome doubts expressed to me by brother judges concerning you. I have supported other people. It is obvious that Blackstone takes but does not give.
I will no longer support your chambers please make that clear to members of your chambers. I do not wish to be associated with chambers that have people like Pannick in it."
The significance was that two members of Blackstone Chambers, Ian Mill QC and Shaheed Fatima QC were before Justice Peter Smith in a wonderful case in which Janan Harb, the former wife of the Saudi King, sued the king's son, HRH Prince Abdul Aziz Bin Fahd Bin Abdul Aziz.
Both Mill and Fatima appeared from the prince at the trial.
Mrs Harb in her youth was a great beauty, born in Palestine to Christian parents. In 1967 she moved to Jeddah where she met the future king. They were married in 1968 after she converted to Islam, but two years later she left Saudi Arabia and moved to the USA. She remarried twice, but was never divorced from Fahd.
Janan Harb: chasing spare change from Saudi royals
Mrs Harb had struck hard times, subsequently being declared bankrupt, and was chasing £12 million and the transfer of two properties in Chelsea from the Saudi royals, which she claimed the prince had promised in return for her withdrawing steamy allegations about her marriage to King Fahd.
She claimed the agreement was made at the Dorchester Hotel on June 19 and 20, 2003 and that the prince entered the agreement in a personal capacity, "in order to satisfy the promises and assurances given by King Fahd to Mrs Harb to provide for her financially for the rest of her life".
Justice Peter Smith accepted Mrs Harb's evidence and found that a binding contract had been made.
One of the grounds of the Prince Abdul Aziz's appeal was that because of the fallout from the British Airway's case, which resulted in The Times' article by Lord Pannick from Blackstone and the threatening letter by Smith to the co-head of the chambers, and the appearance of two barristers from Blackstone for the losing side, Smith's conduct in the Harb case amounted to "apparent bias".
The Court of Appeal (Master of the Rolls, Lord Dyson; Moore-Bick and McFarlane LLJ) rejected the bias ground, but in the process made some devastating remarks about Smith.
In a letter to Mrs Harb's solicitors on February 12, 2016, Smith accepted he should not have written the letter to Peto QC. The Court of Appeal said:
"It is difficult to believe that any judge still less a High Court judge, could have done so. It was a shocking and, we regret to say. disgraceful letter to write.
It shows a deeply worrying and fundamental lack of understanding of the proper role of a judge.
What makes it worse it that it comes on the heels of the BA baggage affair. In out 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 out duty requires us to do so.
But it does not follow from the fact that he acted in this deplorable way that the allegation of apparent bias must succeed."
Having already found for the prince on other grounds the Court of Appeal didn't have to make a finding on apparent bias, but was nonetheless keen to do so.
Harb and future king, in happier times
The appeal judges said that Smith should have found there was no contract and that he was wrong on the argument about whether or not the prince was an agent for the king.
"This was not an easy case to try, given that the principal witness on one side [Prince Abdul Aziz] declined to attend for cross-examination and the principle witness on the other [Mrs Harb] gave evidence that was far from satisfactory and inconsistent with many of the important documents in the case.
We are not able to go so far as to hold the judge's findings of fact were contrary to the evidence, but we do consider that he failed to examine the evidence and the arguments with the care that the parties were entitled to expect and which a proper resolution of the issues demanded.
We regret to say that in our view the deficiencies in the judgement are so serious that it cannot be allowed to stand and that the matter must be remitted to the High Court for re-trial."