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Judge overseeing British Airways competition case removed after asking in court: 'Where is my lost luggage?'

Published 25/07/2015

Mr Justice Peter Smith was also reprimanded for his conduct in 2008 – a first for a senior judge
Mr Justice Peter Smith was also reprimanded for his conduct in 2008 – a first for a senior judge

The patience of Job and the wisdom of Solomon are excellent characteristics for a judge. But when an airline loses their luggage, can’t find it for two weeks, and doesn’t apologise or explain, a judge might be forgiven for forgetting such qualities.

When Mr Justice Peter Smith, a High Court judge, found himself in that very position, and then found the offending airline appearing before him in court, he asked the natural question – where are my bags?

British Airways, the airline in question, declined to answer his question and then added insult to injury by requesting that he stand aside from  hearing one of the biggest competition battles to reach the UK courts – involving allegations of overcharging customers for carrying cargo.

Sir Peter, famous for hiding a coded message in his judgment on a copyright battle over Dan Brown’s novel The Da Vinci Code in 2006, even threatened to have BA’s chief executive summonsed to appear before him to explain the fate of his luggage.

Now the judge has agreed to step aside or “recuse” himself from the trial, but not before making it plain he didn’t think any “reasonably minded observer would think, merely because I raised issues about the non-delivery of my luggage, that it should raise the possibility of bias”.

The suggested request for the judge to stand down was part of a campaign by the airline to have him removed from the case, according to sources within the trial.

BA’s lawyer’s had previously argued for the judge’s removal after claiming that he did not have competition expertise.

A new judge will not be appointed for the long-running case, which dates back to 2006 when BA was raided by European Commission  officials over suspicions of price-fixing in its air cargo business. The EC later ruled that BA and a number of other airlines colluded to fix air cargo charges.

The airlines are now being sued by several hundred companies for losses and damages they say they suffered as a result.

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

Sir Peter has found himself embroiled in similar controversies in the past. In 2008, Lord Phillips of Worth Matravers, the Lord Chief Justice at the time, reprimanded him for failing to stand down in a case of legal professional negligence he was hearing.

It later emerged that Sir Peter had been involved in discussions to join one of the legal firms involved in the case, but the negotiations had ended acrimoniously and the firm claimed the judge had shown animosity towards it afterwards. Sir Peter was criticised by Appeal Court judges and the matter was referred to the Office of Judicial Conduct – the first time a senior judge had been referred to it.

A reprimand is at the lower end of the scale of possible OJC punishments.

Lord Phillips said later: “I consider a firm line has now been drawn under this matter. Both I and the Lord Chancellor value the services of Mr Justice Peter Smith.”


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