The recent and brilliant judgment of Peter Smith J in Emerald Supplies Ltd v British Airways is a hilarious if disturbing read. It is certainly an insight into a world of litigation that most of us will never see.
The judgment itself is brief and deals with the judge’s reluctant decision to recuse himself –
It is part of the well publicised litigation involving thousands of claimants and BA who are represented by giant law firm Slaughter and May. The case concerns allegations relating to the conduct of BA and damages run to billions.
Peter Smith J was handed the responsibility of managing this huge and complex litigation. For reasons which are not apparent BA and their lawyers did not take to him and did all that they could to have him removed. At an early stage the lawyers for BA suggested that he did not have sufficient experience to deal with a case involving competition law, notwithstanding that he was an allocated judge in the Competition Appeals Tribunal – although he had not actually sat on a case.
‘But presumably if the Lord Chancellor thinks I am competent to sit there, that really ought to be enough, even for Slaughter and May, but apparently it isn't.’
But the powerful defendants and their lawyers were not deterred.
By an unfortunate coincidence the learned judge flew to Florence with Mrs Peter Smith J. Yes you’ve guessed – it was a BA flight. And guess what? They lost his luggage on the return flight. In fact they lost all of the passengers’ luggage! The judge was rightly concerned –
‘The situation is that I do not know how a plane departs with all of the passengers' luggage left behind, unless that is a deliberate decision.’
He had hoped this was a matter that could be resolved. He was wrong.
‘A simple dispute as to the luggage cannot possibly be grounds for recusal. However BA and its solicitors have simply escalated the problem almost immediately.’
They demanded that he remove himself from the case himself as he would now be biased.
‘Well, Slaughter and May wrote to me on Monday, requiring me to confirm immediately that I would recuse myself, failing which they would make an urgent application to the Court of Appeal.’
The judge felt he had no alternative but to remove himself from the case and said so in robust terms!
So there we have it. If you don’t like your judge you lose his luggage!
Imagine if any of us tried that.
Most of us are more concerned about how our clients can access justice; or how we may might fight their corner and still earn a living. This is how the wealthy and powerful litigate –
This is a world unknown to any lawyer I have ever known.
This is in fact litigation on planet Zarg.