Judicial baggage

This one isn’t a family case, so you don’t have to read it at all.  Which, reading between the lines, means that I’m writing about it because it is funny.

Emerald Supplies Ltd v British Airways 2015

http://www.bailii.org/ew/cases/EWHC/Ch/2015/2201.html

This is some commercial litigation, which was being dealt with by Smith J in the High Court.  The facts of the case seem to be that there are 300 claimants (as a class action) who are suing British Airways.

One might get the sense from the opening remarks that the Judge lacked some enthusiasm for trying this case.

4. I have been the nominated judge in this case since November last year. I have been involved in the case since March of last year. When this case first came in front of me in March of last year, I suggested to the parties very early on that it was appropriate to have a nominated judge to deal with the hugely complicated interlocutory applications which arise. When I said so, I said I was not bidding for the case, because no judge really would look upon this case with enthusiasm because he or she would be in a no-win situation, as this case has demonstrated.
5. Since then I have heard numerous application, made numerous rulings. There are currently two outstanding, I think, appeals against some of my decisions. There is a CMC listed for three days next week. There is a separate hearing listed in October for a strikeout of the Bau Xiang, of other litigation and various other matters. There have been huge interlocutory orders, circulating mostly around the attempts to come up with some form of redacted decision that the European Commission made as long ago as five years now, but which is still not published, and my last recollection is that it was not promised before 2020. A point which I probably met with indifference, and probably half the Bar before me as well.

It is what happened next that catapulted the case into the realms of legal curiosity.

When you initially read the next twenty paragraphs of the judgment, you think to yourself – what a curious decision, for the Judge to set out the details of the Claimants case in the first person.  It is all  “I did this” and “this happened to me” and “The effect on my that”.  A peculiar stylistic choice, you think.

It is little like  the jarring effect of Jay McInerney’s decision to write “Bright Lights Big City” in the unorthodox second person, so that one keeps reading sentences like  “You sneak into a fashion show in an attempt to find Amanda”  and saying to yourself, “no I didn’t.”

And then after a short time, it dawned on me that the Judge is not actually here setting out the claimant’s case, he is instead setting out in judicial fashion the history of his own ongoing dispute with British Airways who have lost his luggage.   At length.

6. On 30 April, I booked a return ticket to Florence with the first defendant. On 6 July, I flew to Florence, together with my wife, due to return on 10 July. On 10 July, as I have set out in my emails, the flight was delayed for two hours without any explanation. Six people were then summoned to the departure desk and were told that they were bumped off the flight. It turns out that they were the lucky ones, because they got their luggage back then, unlike anybody else in the flight.
7. The rest of us were then rushed to the aeroplane. Somewhat intriguingly, as I have said in my email, we were sitting right next to the plane while it was refuelling for 20 minutes. It might be a standard practice in Florence, I don’t know. It might be a standard practice for the accompanying fire tender to arrive after the refuelling is completed. Anyway, we were then put on the plane and the pilot said that they had been moved to another runway and the load had had to be adjusted because of the crosswinds, and that was it.
8. We arrived at Gatwick, hung around in the baggage claim, as people do at Gatwick, for 45 minutes and then we were told to go to Global Recoveries, where we were told for the first time that the entire flight’s luggage had been left behind. No explanation, no representative, nothing. Nothing from BA. Nothing from Vueling who provided the flight.
9. I saw the distress that lots of people suffered as a result of that; and I contacted BA customer relations, who simply said: it was a Vueling flight, you will have to take it up with Vueling. That is all they said.
10. Vueling were no better. In fact, they were worse, for the reasons I have said in argument. Vueling refused to acknowledge my communicating with them until a computerised individual number went onto their system. As I said earlier, it never did. The luggage arrived spontaneously and without warning on Wednesday last week.
11. I signed my emails as my judicial capacity to alert the Chairman to the fact that this was not merely an issue of a disgruntled consumer. For reasons which I set out below was essential that his office knew about the proceedings and those conducting the proceedings knew about the complaint. I also advised him to contact the lawyers conducting this litigation on BA’s behalf.

The Judge did not get an answer to his grievance, despite having played the “do you know who I am?” card.

Unwise people, who are hasty and unfair might consider that if BA’s customer service department can’t resolve the lost luggage of a Judge who  (a) tells them that he is the Judge and (b) that he is the Judge currently dealing with some really big litigation against BA, what hope is there for anyone else?   Those unwise, hasty and unfair people might wonder how the hell a Customer Service department doesn’t immediately move heaven and earth to get that luggage found.   Why, you cynical bunch. The answer is that BA Customer Service department provides exactly the same stellar service to all customers on a completely egalitarian philosophy, without grace or favour.

The Judge goes on

This is not an issue over luggage, however. It never has been

[hmmm]

12. I was concerned about as Mr Turner QC rightly says, BA’s conduct in dealing with that flight — or Vueling’s conduct, which as far as I can see BA take responsibility. They are in the same group of companies, my contract was with BA, BA charged me and I got a BA flight number — if it was not explained, it might be something that is strikingly similar to some of the allegations in this case.

13. The reason I was concerned really ought to have been blindingly obvious, although some of the submissions by Mr Turner QC today would suggest otherwise. 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. It is an easy enough question to pose and it ought to be an easy enough question to answer. We are now 12 days from the flight and I have no explanation, and Mr Turner QC and the team who instruct him have deliberately refused to enquire, to provide me with an answer, praying in aid a desire to separate what they call a private dispute from this judicial dispute. This is not possible but could have been easily resolved had BA and its advisors wished it. This if correct was similar to some of the allegations in this case. If correct I would have had to recuse myself as I made clear in argument. BA’S FAILURE TO ANSWER
14. BA must know what the position is. I am promised some form of answer, by Mr Turner QC, in the normal course of events with expedition. Well, I am 12 days down the line and if those simple questions cannot be answered in 12 days with expedition, I really feel for other people who have the misfortune to fly with BA. It is unexplained.
15. Equally, I do not see how the pilot can take off and not know the luggage isn’t there. Equally, I do not see that the ground staff can conduct themselves in the way they did with us and not know that the luggage was not going.
16. In my email to the chief executive, which was the only way forward, having been rebuffed by customer relations, I said that I didn’t see how there was any logical explanation for those.
17. I remain of that view. Of course, I do not operate airlines. There might be a logical explanation. I am surprised, if there is a logical explanation, that it hasn’t been forthcoming in the last 12 days. I do not believe there is a logical explanation. I believe that the passengers’ luggage was deliberately bumped off for a more profitable cargo.
18. I hope BA can write back, if they were to write back and tell me that that is not so, because if that is so, my investigation will carry on in a private capacity — where that ends up, I don’t know yet, but it will — which I will pursue with the vigour for which I am known, because I am no longer involved in this case.

At this point, I am saying that if a TV company want to commission a show about a (highly fictionalised and not in any way real)  vengeful High Court Judge who simply will not rest until he gets to the truth of what happened to his luggage, I think it has legs. I’d cast Jack Nicholson.   Let’s call it  “Case Closed” .  I want to watch Smith J battle and find his baggage.

[* When I was about ten, I’m sure that I saw a TV show that featured one of those clever dogs, like Littlest Hobo, or Boomer. But this dog was about an Army German Shepherd and the opening dialogue said that this dog was “wrongly accused of a crime he didn’t commit, now he travels the country searching for the evidence that will clear his name”, which even at ten years old, I thought was a ludicrous premise for a TV show.  “Cracking the case”  /  “Baggage Control”  “Unexpected item in the baggage area”is far better. 

I’ll do the voiceover crawl.  “In thirty years as a lawyer, Justice Coltrane never lost a case. But now BA have lost his, and they’re going to find out what happens when you stand in the way of Justice”    oh, how about  “His bags got checked in, and now something doesn’t check out. ”   or  “They put a tag on his suitcase and then they lost it. But now he’s lost it,  he’s gonna put a tag on their toes. ]

Again, unwise, hasty and unfair people might be saying “Jeez, if that’s the way that BA treat a Judge when he wants an answer to what happened to his luggage and has people in Court in front of him who can’t give a straight answer, I’m sitting with my valuables in my lap for the whole flight”.  Tsk, tsk, you hasty and unfair people.

An application was made for the Judge to recuse himself.   It is somewhat hard to see how a Judge who has said that in his personal dispute with BA,  ” I believe that the passengers’ luggage was deliberately bumped off for a more profitable cargo. ”    could continue.

But I underestimated the determination of Smith J.  He argues it out at length, pointing out again that this is not actually about his suitcase, it is about a resolution of how his suitcase came to be lost.  [I suppose the 300 claimants may have been thinking that it was actually about their claim, rather than a judicial trip abroad which didn’t work out, but Claimants, Schlaimants…]

1. REASONABLE OBSERVER
26. I do not believe for one minute that the reasonably minded observer, which is the test, as Mr Turner has reminded me of, would think that merely because I have raised issues over the non-delivery of my luggage of itself should lead to the possibility of bias.
27. I believe a reasonably minded observer would see a Judge with a problem trying to resolve that issue and finding the parting question being obstructive and unwilling to address the issue and find a solution. A simple dispute as to the luggage cannot possible be grounds for recusal. However BA and its solicitors have simply escalated the problem almost immediately.
28. As I have said in argument, it has been open to BA in this case simply to damp the fires of this dispute immediately, by coming up with an explanation of an operational nature as to why the luggage was not sent. They have not done it despite me giving them the earliest opportunity to do so.
28. REACTION BY BA AND ITS SOLICITORS
29. The solicitors and the person apparently instructing them have adopted a three wise monkeys approach which I found, frankly, astonishing. The reason I conclude they do that is because they don’t want to know the answers, because it might affect them. And the reason why BA have not replied, I conclude, is because there has been some kind of operation designed to maximise profits at the expense of their regular customers. Further I am satisfied they want to exploit this situation to pressure me into coming off the case.
30. Judges spend all the time drawing conclusions from people’s actions; and the like; the taking off with no luggage and the knowledge of the pilot, I find it impossible to believe that if those instructing Mr Turner QC wanted to, they could not have found out what the answer was to this in good time. And having seen me on Monday, it would have been perfectly easy for them to write and say, “Thank you for drawing it to our attention. We have spoken to the operations and the luggage had to be left behind, we regret, for this, this and this”, and that would have been the end of the matter. I had of course brought it to their attention as soon as practicable on the Monday.
31. But they didn’t do that. Almost within a matter of hours of the meeting, they decided that I should recuse myself.
32. Now, I do not accept that the correspondence justifies that application. And I am afraid to say that it is, in my view, an opportunistic application, made by a party that has wanted to get me off this case before.
33. I would remind the parties that even before the case was allocated to me, Mr Turner expressed a view in open court spontaneously that his clients did not think I was capable of dealing with the CMC in this case because it represented difficult issues of competition law, of which It was alleged I had no experience. His client’s major difficulty was that I had been an allocated judge for four years in the Competition Appeals Tribunal, although I had not actually sat on any cases. 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.
34. And when the parties finally followed up the suggestion that they apply to nominate a judge, they actually wrote [the Chancellor] should not appoint Mr Justice Peter Smith. That was an unfortunate letter for them to have written because it held a gun to the Chancellor’s head, but as the Chancellor rightly observed, there are no competition issues of significance left in this case now. There is either a common law claim for conspiracy, and in that regard I am probably the most experienced judge in the division dealing with those cases, and there are issues as to damages that might flow from an already admitted breach of competition law.

If you thought the application to recuse was so-so before those remarks  (and really? Did you? )  then I’m fairly sure that at the point where the Judge says that the application for recusal is a conspiracy theory because BA are running some sort of behind the scenes arrangement where they routinely ditch passengers luggage so that they can carry commercial freight for profit, is the point where the reasonable observer would think “nope, you need to step aside now”

39. So the question then is: what should I do? 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. This litigation is complex enough, without those distractions. It is of no interest to the other parties, who have all had to come here today, to have a proper application made and a decision made. And that has a cost consequence which will probably be irrecoverable, and it is a matter of great regret to my mind that the parties have been inconvenienced for no apparently good or acceptable reason. It would not be appropriate for a recusal application to be acceded to as a result of an exchange of private correspondence.
40. This would lead to a waste of a lot of judicial resource time in addition to the parties it will also slow progress of the case which I have been attempting to progress. I am afraid BA are not in my view really interested in progressing the matter expeditiously for obvious reasons.
41. I however cannot allow my presence in the case and its difficulties to distract the parties from this case. And therefore, regretfully, I feel that I have no choice, whatever my feelings about it, but to recuse myself from the case, and that is what my decision is; not for the reasons put forward by BA, but for the reasons that I have said.
42. So I will recuse myself. I will vacate the hearing next week; and I shall not direct it to be fixed before the most convenient date as suggested. I shall direct that the parties shall attend on 2 October for directions from the newly appointed judge as to the further conduct of this case. I shall also require the parties to make an immediate application to the Chancellor to appoint a substitute judge; and to tell the Chancellor that I have directed that the first hearing of the case by that newly appointed judge should take place on 2 October.
43. I will, if necessary, adjourn the application that BA issued, I think, yesterday for a strikeout in the Bau Xiang litigation as well, to be considered as part of the other matters which the judge will be required to do. And I will make no order as to costs.
44. This is a regrettable but necessary decision caused in my view entirely by BA’s attitude and determination to achieve a result which is nothing to do with the problem. It is a regrettable feature that some litigants now regard a recusal application as one of the tools they can deploy in aid of their case. BA has finally achieved its aim. Neither of their attacks was in my view justified but ultimately they were successful for the reasons given.

So there you have it. BA succeeded in removing a Judge from the case whom they perceived to be biased. But it was a Pyrrhic victory, since the Judge was able to use that recusal application to publish a judgment setting out just what he thought of them, and as you can’t sue for defamation for anything that happens in Court or reporting what happened in Court, any national newspaper can report everything that the Judge said about his views about BA (as long as they don’t go further and say that they agree with them)

Seriously,  Jack Nicholson’s agent should really talk to me. I think we have a hit here.   [I’m not ruling out Liam Neeson for the role, I think he’d be great for this – but Liam’s agent, you need to know that Jack is interested, so you’d better make a commitment, or the part will be gone]