1 2
Wednesday, 22 July 2015 (11.00 am)
3
(Proceedings delayed)
4
(12.01 pm)
5
MR JUSTICE PETER SMITH:
6
MR TURNER:
7
Yes.
May it please the court.
I appear today with
Mr Patton for British Airways.
8
For the Emerald and Bau Xiang claimants we have
9
Mr Harris, Queens Counsel, Mr Rayment and Ms Blackwood.
10 11 12
For the La Gataina claimants, Mr Greene of Edwin Coe appears, on the second row at the end. For the 17 Part 20 airlines who subscribe to the
13
letter that your Lordship, I hope, received yesterday,
14
sent by Hogan Lovells, Mr Jowell appears.
15
Submissions by MR TURNER
16
My Lord, the substantive issue before you today is
17
the delicate one of apparent bias and recusal from the
18
proceedings; and it extends to --
19 20
MR JUSTICE PETER SMITH: morning.
I asked you to do something this
Has it been done?
21
MR TURNER:
It has been done, my Lord.
22
MR JUSTICE PETER SMITH:
Can you explain to me why it wasn't
23
done?
It's alright for your solicitors, they hide
24
behind the anonymity of not even saying who they are.
25
Why did they disregard my request? 1
1 2 3
MR TURNER:
My Lord, this was perhaps an oversight.
May
I tell you what was done? Your letter of Friday saying that it was important
4
your personal details should not be communicated to
5
non-lawyers was immediately communicated to all of the
6
parties; and in response to your Lordship's
7
communication to me this morning, Slaughter and May
8
immediately contacted all the parties, asking them to
9
substitute the redacted pages and to ask that any
10
unredacted pages should be immediately replaced and
11
destroyed; and if your Lordship wishes, I have a copy of
12
the email that was sent and I trust that will be done by
13
all parties.
14 15 16
MR JUSTICE PETER SMITH:
It ignores the fact that unredacted
ones are on the court file. MR TURNER:
What we have done there is we have provided
17
a redacted copy for the court file, to be substituted.
18
That is with the court.
19
My Lord, the substantive issue before you is the
20
delicate one of apparent bias; and I would add that this
21
extends to standing down from the CMC that remains
22
currently listed for next week, although we do
23
understand that this will have to be relisted for the
24
first convenient date in the Michaelmas term.
25
MR JUSTICE PETER SMITH:
What is active in the CMC next 2
1 2
week? MR TURNER:
There are a series of applications that have
3
been indicated on the claimants' side by application
4
notice; and on BA's side, by application notice, and the
5
parties --
6
MR JUSTICE PETER SMITH:
I have got their application of
7
20 July, which seeks an order for provision of further
8
information and a stay for mediation between 1 September
9
and 31 October.
10
MR TURNER:
Yes.
You should also have an application notice
11
by British Airways.
12
MR JUSTICE PETER SMITH:
13 14
I have the present one.
What else
is there? MR TURNER:
There is one relating to that CMC that was
15
lodged -- it would have been on the same day; the date
16
by which the parties agreed the application notices
17
would be filed.
18
MR JUSTICE PETER SMITH:
19
MR TURNER:
What is that for?
That was for a series of orders relating to
20
disclosure, correction of matters in relation to the
21
Scott schedule, and associated orders.
22 23 24 25
MR JUSTICE PETER SMITH:
That hasn't arrived yet.
I have a letter from Hausfeld, which I think refers to that application. MR TURNER:
Have you seen that?
I am not sure which letter your Lordship means. 3
1
MR JUSTICE PETER SMITH:
The letter of 22 July, written to
2
me, asking that an application, which I have not seen
3
that BA made in the Bau Xiang proceedings be listed
4
together with the forthcoming case management conference
5
listed for three days; and they suggest it should be
6
adjourned off to the hearing of the strikeout.
7 8 9
MR TURNER:
Yes.
I am grateful to your Lordship for
reminding me of that. As well as the Emerald claimants' applications,
10
there is also an application by BA in relation to the
11
Bau Xiang matter, where, your Lordship may recall, that
12
is the Chinese claimants; there are 65,000 of them.
13 14 15
MR JUSTICE PETER SMITH:
Yes.
That's the strikeout because
of lack of authority? MR TURNER:
That is the strikeout for lack of authorities,
16
but what they have done is they've said already that
17
60,000 of the 65,000 claimants do not, as far as they
18
perceive it now, appear to have carried air cargo during
19
the period in question.
20
is right that those claimants should be removed from
21
their claim.
22
heard next week.
23
On that basis, we say that it
That was one of the matters due to be
MR JUSTICE PETER SMITH:
It is your client's case that
24
I can't even hear these relatively modest administrative
25
applications; is that right? 4
1
MR TURNER:
We say that that is an important application;
2
but that in any event, in the circumstances that have
3
arisen, it is better to be comprehensive, that the
4
recusal application therefore applies to these matters.
5
MR JUSTICE PETER SMITH:
Right, Mr Turner, here is
6
a question for you.
What happened to luggage?
7
MR TURNER:
My Lord, the position remains that set out in
8
the letter from Slaughter and May of 15 July, that we
9
are not dealing with that as parties in these
10
proceedings.
11
MR JUSTICE PETER SMITH:
12
to the luggage?
13
MR TURNER:
I am asking you: what has happened
My Lord, so far as the parties to these
14
proceedings, including Slaughter and May as the
15
representative of British Airways for these proceedings,
16
are concerned, we have said, and we maintain, that we
17
are not getting involved because we trust that that will
18
be dealt with expeditiously, in the ordinary course of
19
events.
20 21 22
MR JUSTICE PETER SMITH:
In that case, do you want me to
order your chief executive to appear before me today? MR TURNER:
I do not wish your Lordship to do that; and
23
I would say, if your Lordship will permit me to develop
24
my submissions, that that would be an inappropriate
25
mixture of a personal dispute -5
1
MR JUSTICE PETER SMITH:
What is inappropriate is the
2
continued failure of your clients to explain a simple
3
question, namely, what happened to the luggage?
4
been two weeks since that happened now.
5
saying that if I had a piece of luggage that was just
6
lost, that would lead me to recuse myself from the case?
7 8 9 10 11 12 13
MR TURNER:
I am not saying that, my Lord.
It has
Or are you
If I may, I will
develop the submissions on this because -MR JUSTICE PETER SMITH: question. MR TURNER:
No, I want an answer to my
If you are not going to --
In that case, let me answer both of those
questions. I am not saying that a mere dispute over mislaid
14
luggage of your Lordship's would itself, in itself, be
15
grounds for recusal.
16
submissions that we have made and the letters, is that
17
this dispute extends beyond a mere dispute about mislaid
18
luggage.
19
Our position, as set out in the
Secondly, in relation to the overlap between the
20
personal dispute and the litigation before your
21
Lordship, we say that no linkage should be made, because
22
that contributes to the impression of bias.
23
MR JUSTICE PETER SMITH:
If the dispute over the luggage had
24
gone to litigation, you are not saying I shouldn't have
25
told the parties in this litigation of that dispute, are 6
1
you?
2
wonder what thunderbolts would have come in my direction
3
if your solicitors had found out that I was in a dispute
4
with BA and not told them, and BA didn't know of my
5
connection with this litigation and I commenced
6
proceedings against BA, and then I suddenly tell your
7
lawyers that: oh, by the way, I am suing your clients.
8
Are you seriously suggesting there isn't a necessary
9
linkage that has got to be ventilated?
10
I just find that an impossible submission.
MR TURNER:
Our position, my Lord, is that where your
11
Lordship initiates a personal dispute with
12
British Airways --
13
MR JUSTICE PETER SMITH:
I didn't initiate a personal
14
dispute.
15
It is not my fault that that happened.
16
I just
BA's associated company retained my luggage. I am the victim.
I read the whole of your correspondence.
The more
17
I read it, I got the impression that BA was trying to
18
portray itself of the victim of this case and being
19
oppressed by wicked Mr Justice Peter Smith.
20
ridiculous.
21
It is just
The reason I called you and Mr Harris and your
22
lawyers in was that I wanted to head off a situation
23
whereby it would escalate out of control and lead to the
24
present application.
25
MR TURNER:
My Lord, I do understand that and this is not 7
1
a criticism of your Lordship's motivations in any way.
2
May I answer the question that you have just put to me?
3
In circumstances where a dispute arises between the
4
judge presiding in a case and one of the litigants, the
5
right course to take, as indicated in our letter of
6
16 July, is for your Lordship to notify the parties to
7
the litigation, and to speak to them about it at the
8
earliest opportunity.
9
MR JUSTICE PETER SMITH:
I did.
I could not have spoken to
10
you earlier unless you wanted me to phone you at home on
11
a Saturday or a Sunday.
12
thing on Monday morning.
13
MR TURNER:
You were contacted the first
But this was after having written to the chief
14
executive in the context of the personal dispute, in
15
your email of 13 July, making the connection between the
16
two disputes; the professional and the personal.
17
that which is objectionable in that connection.
18
understand that if a personal dispute arises it is
19
necessary to bring it to the attention of the parties.
20 21 22
MR JUSTICE PETER SMITH:
It is We do
When you sign letters, how do you
sign them? MR TURNER:
When I sign letters, my Lord -- I am not going
23
to, as it were, descend into a personal discussion of
24
this, but --
25
MR JUSTICE PETER SMITH:
It is personal. 8
Your clients have
1
personalised this.
2
MR TURNER:
My Lord, with respect, no, and they seek not to
3
do so.
4
representative or a judge involved in litigation, the
5
right thing to do is not to append one's legal title to
6
the correspondence.
7
MR JUSTICE PETER SMITH:
Where a personal dispute arises for a legal
If I put Sir Peter Smith, I always
8
get letters "Dear Sir Smith" which doesn't actually give
9
confidence in the other party.
There is absolutely
10
nothing wrong with a party finishing his letter off with
11
the title which he has.
12
But I come back to my first question.
13
happened to the luggage?
14
your solicitors know?
15
That is the answer to that.
MR TURNER:
What has
You don't know, obviously.
Our solicitors do not know, because of the
16
separation that I have told your Lordship we are
17
implementing.
18 19 20 21 22 23 24 25
Do
MR JUSTICE PETER SMITH:
What I will tell do is I will rise
until 12.45 and you can find out. MR TURNER: that.
My Lord, with respect, we are not willing to do If I may --
MR JUSTICE PETER SMITH:
Do I have to order you to do it,
then? MR TURNER:
My Lord, I understand that, and if your Lordship
makes an order we will have to address that. 9
But may I,
1
before your Lordship makes that order, please develop my
2
submissions?
3
on them, before your Lordship makes that order.
4 5
Then I will ask your Lordship to reflect
MR JUSTICE PETER SMITH:
No, I am not going to do that,
Mr Turner.
6
As far as I am concerned, the key fact in this case
7
is: what happened to the luggage; and your clients know
8
what happened to the luggage and they are not telling
9
me.
And your solicitors and you are deliberately not
10
asking.
11
being withheld from me is what is the key point in this
12
issue, by the people who seek to recuse me from the
13
case.
14
Your reasons might be as you say, but what is
This is very serious, not merely for me, but for all
15
the parties involved in this litigation.
16
course, that it is not a matter of discretion, but I am
17
entitled to be satisfied that there is a genuine case
18
that a reasonable third party would think there is
19
a possibility of bias, which is what your test is.
20
MR TURNER:
21
MR JUSTICE PETER SMITH:
I accept, of
Yes, yes. Merely because an applicant says
22
so, does not make it so.
I am afraid in this modern,
23
cynical world, applications for recusal, in many cases
24
are regarded by people as a legitimate tool to resort to
25
if they think a case is going badly for them. 10
1
Now, I am entitled, therefore, to know, because if
2
there is -- and I have always made this position clear;
3
if there is a perfectly understandable operational
4
reason as to why the whole of the flights' luggage was
5
left behind in Florence -- note, the whole of the
6
flight, not just mine, the whole of the flights' luggage
7
was left behind -- if it was for perfectly reasonable
8
operational reasons, then I will accept that.
9
been my stance ever since I contacted the chairman.
10
That has
I contacted the chairman because the BA helpline is
11
misdescribed.
12
"It is nothing to do with us, it is down to Vueling",
13
despite the fact that I booked my flight with BA and BA
14
took my money.
15
Because when I contacted them, they said,
That appears to be irrelevant.
The Vueling helpline was even worse, because
16
although we were all given a personalised lost luggage
17
number, it never got onto their system.
18
on the Vueling airline helpline, they said, "Come back
19
to us when your luggage goes on our computer system".
20
They couldn't even tell me where the luggage was till
21
it, without warning, spontaneously arrived at my house
22
last Thursday.
23
So when you are
In those circumstances, I went to the BA website and
24
the BA website says the chairman is anxious to have
25
comments from customers, and there is his email address, 11
1 2
so I sent him an email. That is reinforced by an article which I referred to
3
in the correspondence.
4
customers' emails.
5
he does anything about it, but he obviously likes
6
reading them over his breakfast.
7 8 9 10
Apparently he likes reading
It doesn't appear to be necessarily
So your clients must know now, nearly two weeks after the event, what happened to the luggage. MR TURNER:
My Lord --
MR JUSTICE PETER SMITH:
They can either tell me, and I will
11
give you an opportunity to take instructions again about
12
whether or not you are going to do it; and I will come
13
back at 12.30 and you can tell me.
14
I shouldn't make any preparations for lunch because
15
you are going to be sitting through.
16
your position and I will decide what I am going to do.
17 18 19
MR TURNER:
My Lord, I do understand that.
You can reconsider
May I make two
observations before you rise? The first is: it would be best, in my submission,
20
and right, if I can make the application on apparent
21
bias now.
22
correct, that you are entitled to test the applicant's
23
basis for saying that there is apparent bias.
24 25
I entirely accept, and your Lordship is
MR JUSTICE PETER SMITH:
I don't agree, Mr Turner, because
if your client comes back and says, "there is no 12
1
operating reason that we can give, and in fact we saw
2
an opportunity to make a profit, which we took", then
3
I am afraid I will have to come out the case.
4
accepted that always.
I have
5
Because if that is what your client has done,
6
although I have got my luggage back, as I said to you
7
when you came to see me, that wasn't my concern.
8 9 10
MR TURNER:
Our submission is that the problem of apparent
bias arises regardless of the answer to that particular question.
11
MR JUSTICE PETER SMITH:
12
MR TURNER:
13
MR JUSTICE PETER SMITH:
14
question first.
15
MR TURNER:
I don't agree with you.
May I perhaps explain why that is our position? No.
I want an answer to my
My Lord, then, just before you rise, may I make
16
one further remark relating to what you have said, which
17
echoes what is in your letter of Friday, concerning BA's
18
position and what it must know; because that is, in my
19
submission, not a fair observation, and is itself
20
something that is a matter of concern.
21
The position which was articulated in
22
Slaughter and May's letter was that we didn't wish to
23
make the linkage between the personal dispute and the
24
litigation.
25
a deliberate lack of openness with your Lordship,
We think that to suggest that there is
13
1
because we must surely know the position in relation to
2
the luggage, or that this is tactical, is unwarranted in
3
the circumstances and itself is something that should
4
not be --
5
MR JUSTICE PETER SMITH:
I hope so, Mr Turner.
I sincerely
6
hope so.
7
if you drive me to a position whereby you, in my view,
8
have unreasonably refused to provide a thing which would
9
sever the Gordian knot, then it is possible I might draw
10 11 12 13 14 15
I do not wish to make findings like that.
an inference.
But
Judges regularly draw inferences.
It is up to you.
Your client knows what happened to
the luggage. MR TURNER:
My Lord, with respect, that is not, as I say,
an inference that can fairly be drawn. MR JUSTICE PETER SMITH:
If your client does not know, if
16
you are telling me, on instructions, that BA do not know
17
what happened to the luggage, nearly two weeks after it
18
was not put on the flight, I would require some
19
convincing as to that.
20 21 22
MR TURNER:
My instructions are to have kept the matters
separate. MR JUSTICE PETER SMITH:
I know.
That is why when you say
23
BA don't know, you are meaning the people in the BA case
24
company who are instructing you, and they are adopting
25
a three wise monkeys approach. 14
But BA as a group, as
1
a company in a group, clearly know what happened to the
2
luggage, because, as I said in my original email, they
3
cannot have accidentally left the whole of the flight's
4
luggage off the plane, can they?
5
intrigued.
6
3 gallons of fuel in the plane, it would run out unless
7
they took everything off, which is a bit difficult
8
because the plane was actually being refueled when we
9
got there.
I mean, I am
It might be for some reason they only had
But equally, it is impossible to believe
10
that the pilot, who has to sign the documentation as to
11
what is the weight and composition of the weight in the
12
plane, did not know that his hold was empty; and it is
13
equally impossible for the ground staff not to know that
14
the luggage was not there.
15
These are things which, I accept, I am struggling to
16
find a rational explanation for.
17
operate airlines.
18
know this, Mr Turner: it is clearly within the knowledge
19
of your client to explain.
20
MR TURNER:
I don't know what goes on.
But I do
My Lord, you know, of course, that this was not
21
a BA aeroplane.
22
MR JUSTICE PETER SMITH:
23
MR TURNER:
24
MR JUSTICE PETER SMITH:
25
But then I don't
This was another operator. In the same group.
This is a Spanish low cost operator. That itself is an interesting
story, because I bought my ticket with BA and I was 15
1
given a BA flight number, until the day before I signed
2
in, when it suddenly got changed to a Vueling number.
3
MR TURNER:
There are what is known in the industry
4
my Lord -- I know this has not been debated -- as code
5
sharing arrangements, that your Lordship may have heard
6
used --
7 8 9
MR JUSTICE PETER SMITH:
No.
You mean passengers are
packaged up and flogged off to somebody else? MR TURNER:
I will be told if I am speaking out of turn, but
10
it is a matter of general knowledge that airlines can
11
share the same flight and, with the same flight slot,
12
allocate their flight numbers to it.
13
code sharing.
14
This is called
It is a term in general usage.
MR JUSTICE PETER SMITH:
I didn't contract with Vueling.
15
I contracted with BA.
16
money.
17
fact, BA had the responsibility for me being able to get
18
onto the flight.
19
why the plane was possibly overloaded or underloaded,
20
because the people might have code shared more than
21
there are(?).
22
for BA to tell me, their "customer help (sic) line", was
23
that it was nothing to do with them was, shall I say,
24
economic with the actualité.
25
MR TURNER:
I signed up with BA.
BA took my
BA had the responsibility for my luggage.
In
Your code sharing now explains to me
But my contract was with BA and, frankly,
My Lord, I do not know that British Airways have 16
1
said that it is nothing to do with them.
2
understanding is that this is being investigated as
3
expeditiously as possible in the ordinary course of
4
events.
5
rightly says, BA, in the capacity of this litigation, is
6
not investigating in parallel your Lordship's personal
7
dispute.
8 9
All I am saying is that, as your Lordship
MR JUSTICE PETER SMITH:
That was a decision that your
solicitors and clients, and possibly you, unilaterally
10
made.
11
how you can uncouple the two events.
12
that later.
13 14
As I say, my
I think it is the wrong decision, and I don't see
In the meantime, 20 to 1.
We can develop
I will rise and you can
consider your position and see where you go.
15
I have a part heard trial which this is trespassing
16
on at the moment; and they will come back at 2 o'clock.
17
If we haven't finished by 2 o'clock, we shall carry on
18
after 4 o'clock.
19
MR TURNER:
My Lord, I'm grateful.
I would ask again, if we
20
rise now to reflect, then we shall do so, but I would
21
ask again for the opportunity to develop my submissions
22
as to why the assumptions your Lordship has made are not
23
fair assumptions to have made at this stage; and they
24
themselves provide a basis for saying that there is
25
apparent bias. 17
1
MR JUSTICE PETER SMITH:
Before I rise, I apprehend, for
2
reasons that I suspect are not connected with this
3
application, that nobody has any enthusiasm for the CMC
4
next week.
5
MR TURNER:
Is that right?
All parties agree, but perhaps for different
6
reasons, that the CMC next week should be adjourned in
7
these circumstances.
8 9 10 11 12 13 14 15 16 17
MR JUSTICE PETER SMITH:
would be happy for everyone, would it? MR TURNER:
I can't speak for other parties.
BA would deal
with that. MR JUSTICE PETER SMITH:
The next judge might not be on your
solicitors' acceptable judge list. MR TURNER:
My Lord, our solicitors do not have
an acceptable judge list. MR JUSTICE PETER SMITH:
What the phrase I'm looking for?
I hear what you say, Mr Turner.
18
MR TURNER:
19
MR JUSTICE PETER SMITH:
20
So if I found another judge, that
My Lord, that is the position. Mm-hm.
I hear what you say.
Does anybody want to say anything else at this
21
stage?
22
MR HARRIS:
23
MR JUSTICE PETER SMITH:
No, my Lord. I will give you until 12.40 to
24
reconsider your position and then I will decide what to
25
do if you don't. 18
1
MR TURNER:
2
(12.25 pm)
My Lord, understood.
3
(A short break)
4
(12.40 pm)
5
MR JUSTICE PETER SMITH:
6
MR TURNER:
Yes?
My Lord, we have contacted our instructing
7
solicitor at British Airways.
She has no information
8
and does not know what has happened to your luggage.
9
She maintains the position that this will be dealt with
10
in the ordinary course of events expeditiously, and
11
isn't prepared to engage in the investigation of a
12
personal issue through this litigation.
13
My Lord, may I say, to pick up the thread that was
14
left before the short adjournment, that it is
15
appropriate to deal with a threshold question before
16
considering what the implications of that are.
17
We say --
18
MR JUSTICE PETER SMITH:
19
MR TURNER:
What does that mean?
That the apparent bias issue arises irrespective
20
of the answer that you get to what happened to the
21
luggage on the flight; and that is the position that
22
I would wish to develop submissions on first before your
23
Lordship.
24 25
MR JUSTICE PETER SMITH:
You have half an hour for your
submissions in total. 19
1
MR TURNER:
2
I am obliged, my Lord.
We say that the position of apparent bias arises
3
now.
4
sent to the chairman on 11 and 13 July; it arises from
5
your approach to the problem subsequently, including the
6
letter on 17 July, and indeed the remarks which are
7
along those lines made in this hearing.
8 9
It arises from the content of the emails that you
The grounds are set out in our skeleton argument at paragraphs 11 to 13.
In view of the indication from
10
your Lordship, I will only briefly highlight the key
11
propositions of law relevant to our application and then
12
why the circumstances of this case call, we say, for
13
recusal.
14 15
In answer to the points that your Lordship has made, I will explain four things.
16
First, this is not a trivial baggage dispute.
17
Second, and I think your Lordship has acknowledged
18
this so I need spend no time on it, this is not the sort
19
of matter where one takes into account, in the balancing
20
exercise, the cost, delay and inconvenience of recusal.
21
Third, that the problem of apparent bias does arise
22
now.
23
later, depending on what BA answers to your questions.
24 25
It is not something that potentially arises only
Fourth, this is not a matter where the explanations that your Lordship has given, concerning why you wrote 20
1 2
to the chairman, resolve the problem. My Lord, I can be very brief on the legal
3
propositions.
4
is an authorities file.
5
propositions without going there or else I can show your
6
Lordship some relevant passages.
7 8 9 10 11 12 13
You should have two files; one of which
MR JUSTICE PETER SMITH:
MR TURNER:
I understand, my Lord.
Tab 5, one that your Lordship may, with regret, remember is the Lees Millais case. MR JUSTICE PETER SMITH:
15
MR JUSTICE PETER SMITH:
Sorry, my Lord?
MR TURNER:
18
MR JUSTICE PETER SMITH:
21 22
I have no regret about that
decision.
17
20
I have no regret about that
decision. MR TURNER:
19
You know, I think I might remember
these authorities.
14
16
I can either articulate the
My Lord, I understand. You don't, because you don't know
what happened in the case. I will tell you what happened in the case, because this demonstrates the problems you have. The Court of Appeal, having considered the
23
application for me to be removed for 30 minutes and
24
decided it, having been shown only half the transcripts
25
of the hearing it took before me, and in particular not 21
1
being shown that I had suggested a particular way in
2
which the applicant's case could be resolved, removed
3
me.
4
The result was that the party who were running up
5
costs remained in place, and the application was then
6
renewed in front of another judge and took eight days,
7
cost millions of pounds, with the result that they got
8
precisely what I had offered them on day 1; with the
9
result that they were ordered to pay everybody's costs
10
on an indemnity basis, and it led to this observation in
11
the Court of Appeal, on their appeal again.
12
"First, the history of this application, the costs
13
incurred in connection with it, the court time, this
14
whole application having taken eight days plus four days
15
on costs, not to mention interim hearings on this
16
appeal, and the duration of the application which
17
started over 15 months ago, were all unquestionably
18
inappropriate and appears to be little short of
19
scandalous."
20
[2011] EWCA Civ 786, paragraph 42.
21
None of that would have happened, of course, had
22
they acceded to the proposal that I made in the first
23
half hour of the case instead of going off the
24
Court of Appeal.
25
So I have no regrets about Millais.
I have plenty of regrets about the way in which the 22
1
Court of Appeal went about their decision, but, like you
2
I suspect, we are no longer surprised by what happens in
3
the Court of Appeal.
4
I understand the principle.
I also wish to note
5
that the Court of Appeal has consistently refused to
6
give judges any kind of guidance as to how these kinds
7
of cases can be dealt with.
8
the forum, but given that case, and indeed given this
9
case, if this issue is going to be resolved, it can only
I was accused of going into
10
be resolved between you, on behalf of your clients, and
11
me.
12
it, (a) because they know nothing about it, (b) it is
13
nothing to do with them.
14
I can't expect anybody else to become involved in
The Court of Appeal has not yet come up with
15
a procedure.
16
Millais case, they believe that I should have recused
17
myself on the basis of a letter that was sent to me at
18
4.30 the day before a three-day case was due to start,
19
I having been involved in reading it for three days, the
20
contents of which were not shown to the other parties,
21
who knew nothing about it.
22
considered acceptable.
23
Had I acceded to what happened in the
That the Court of Appeal
Your clients' solicitors at least brought, I think,
24
Hausfeld into the correspondence.
25
things are so important they cannot be dealt with by 23
But equally, these
1
letters.
2
solicitors' requirement for me to recuse myself by their
3
letter delivered on Monday.
4
like it not to be done.
5
to be ventilated publicly.
6
description.
7
That is why I did not respond to your
It cannot be done.
I would
I don't wish my private affairs It comes with the job
So I don't regret Millais one jot.
8
MR TURNER:
My Lord --
9
MR JUSTICE PETER SMITH:
We still have a difficult procedure
10
where, in effect, I have to argue my own case and then
11
adjudicate on it.
12
dealt with.
13
suggestions.
14 15
MR TURNER:
I don't know any other way it can be
If you can think of something, I am open to
My Lord, two observations.
The first is I make no comment about the facts of
16
that case or whether it ended unhappily or not.
17
it to only for the legal propositions in law.
18
I refer
Secondly, so far as the personal dispute issue is
19
concerned and how one does deal with something that
20
happens of this nature, our position is your Lordship
21
should not make a linkage, but bring the parties in the
22
litigation before you to explain that a personal dispute
23
has arisen.
24
MR JUSTICE PETER SMITH:
25
MR TURNER:
I did that.
I did that --
Yes, but only after contacting the chief 24
1
executive in the context of the personal dispute and
2
pointing out to him that he may, or suggesting that he
3
should contact immediately his lawyers in the Emerald
4
litigation.
5
That was the problem.
My Lord, if you have the Lees Millais case in front
6
of you, I will very briefly mention the propositions
7
that we say are relied on and relevant.
8
Paragraph 4, you will be well aware of the basic
9
statement of principle concerning apparent bias; the
10
fair minded and informed observer test from Porter v
11
Magill.
12
Paragraph 5, it is Lord Steyn, referring to the
13
Lawal case, and he refers to the need for public
14
confidence and says that the test has, at its core, the
15
public perception of the possibility of unconscious bias
16
being the key.
17
So it is not a motivation issue.
It is a perception
18
issue, and that can extend also to unconscious bias.
19
I agree with your Lordship: it is a very difficult
20
matter for a judge who is the subject of that
21
application to deal with themselves, but that is the
22
procedure that is followed.
23
Paragraph 6 is the point that your Lordship has
24
already commented upon, quoting AWG at 6(i), that the
25
disqualification isn't discretionary. 25
1
And at (v), under 6, the question of animosity
2
expressed between a judge and a litigant gives rise to
3
a real danger of bias; and that is an example of how
4
there may be grounds for doubting the ability of a judge
5
to ignore extraneous considerations and prejudices.
6
Paragraph 7 quotes Locabail, and you see there the
7
proposition that although the judge may give
8
an explanation of their position, that is not decisive.
9
The court may still recognise the possibility of doubt
10
about it and the likelihood of public scepticism.
11
Finally, paragraphs 31 and 41.
12
Paragraph 31, that animosity showing apparent bias
13
can be discerned from the content and tone of the
14
correspondence with the judge.
15
Paragraph 41, summing up the test in a different
16
way; a judge must not become so personally involved in
17
the litigation that the necessary judicial objectivity
18
is no longer guaranteed.
19
perception which we rely on, not a matter of necessary
20
reality.
And again, that is a matter of
21
As to submissions, I say briefly then as follows.
22
First, that this personal dispute isn't about the
23
delayed delivery of two pieces of your Lordship's
24
luggage.
25
Friday letter.
That was suggested in paragraph 7 of your If your Lordship wants to open up that 26
1
letter -- if you have the other bundle, the hearing
2
bundle, and put away the authorities bundle.
3
if you go to page 36, which is within your letter of
4
Friday.
5
In tab 2,
If you go to the end of paragraph 7, you said:
"If you do not object to that [which was the earlier
6
point about Mr Hollander] I cannot see that a delay in
7
delivery of two pieces of luggage of itself can
8
seriously be put forward as an argument for recusal."
9 10 11
Your Lordship fairly said a little earlier that the issues relate to the reasons for the non-carriage -MR JUSTICE PETER SMITH:
I said that to you on Monday.
12
I made it quite clear on Monday, didn't I, that the
13
issue was not over the delivery of the luggage, and that
14
I was not concerned about the delivery of the luggage?
15
MR TURNER:
Yes.
16
MR JUSTICE PETER SMITH:
I made that clear, and that
17
sentence actually repeats what I say, in the sense that
18
I reject any suggestion that an argument over
19
non-delivery of two pieces of luggage between myself and
20
your clients could ever constitute the basis for me
21
having to recuse myself, and I think you accepted that
22
earlier.
23
MR TURNER:
Yes, my Lord, and we say therefore that --
24
MR JUSTICE PETER SMITH:
25
MR TURNER:
We are ad item.
Yes, we are ad idem that therefore this is not 27
1
what the dispute really concerns.
2
the reasons why the whole flight's luggage were not
3
carried, and associated matters.
4
The issues relate to
Second, the emails that you sent to BA about it
5
weren't framed -- if we turn to the email on page 12,
6
behind tab 2, we see the two emails on pages 12 and 13.
7
These weren't framed as open questions to ask: what has
8
happened?
9
very pointed allegations, culminating in conviction on
10
certain points, and they raise issues similar to those
11
which are pleaded in the case and the litigation before
12
you by the claimants.
13
references.
14
convictions, but not even as possibilities.
15 16 17
The emails to the chairman make a series of
We have given some of the
Some of these are couched as conclusions,
If you have the first email and look to the bottom of page 12, right at the bottom: "... plainly a deliberate decision ..." not to carry
18
any luggage at all.
19
MR JUSTICE PETER SMITH:
Are you telling me it is
20
accidental?
21
Just engage your brain, Mr Turner, and tell me how you
22
can think how it can be possible that a plane can take
23
off and accidentally leave the entirety of the
24
passengers' luggage behind?
25
MR TURNER:
Don't just say: I have no instructions.
My Lord, I am not wishing to block your 28
1
Lordship's question.
2
have arisen; whether there may have been some
3
administrative error --
4
MR JUSTICE PETER SMITH:
I simply do not know how this may
They might have left the door open
5
and it might have fallen off in pieces as it was taking
6
off, I suppose, but --
7 8 9
MR TURNER:
My Lord, I simply cannot speculate.
What I can
say is that to arrive at the conclusion -MR JUSTICE PETER SMITH:
You only have to speculate because
10
your clients won't tell you, or you won't ask your
11
clients.
12
MR TURNER:
13
MR JUSTICE PETER SMITH:
14 15
My Lord, with respect -They have the answer.
They know
the answer. MR TURNER:
Your Lordship says that, but there is
16
a complaint with BA which is or should be being dealt
17
with expeditiously.
18
on instructions --
19 20 21
MR JUSTICE PETER SMITH:
There certainly, and I can say this
What is the timetable for
expedition? MR TURNER:
My Lord, I am not aware of that.
What I can
22
say, on instruction, is that there is absolutely no
23
basis for any thought that we are slowing this down in
24
a tactical way or seeking to withhold from your
25
Lordship -29
1 2 3 4
MR JUSTICE PETER SMITH:
I don't believe I'll ever get
an answer. MR TURNER:
My Lord, that is said on instructions.
Returning to the email, the "deliberate decision"
5
not to carry the luggage.
6
paragraph 2, the perpetuation of a "deliberate deception
7
that everything was proceeding as normal" by the staff.
8 9
MR JUSTICE PETER SMITH:
At the bottom of the page,
Once again, the pilot has to know
the weight of the plane.
He has to approve the
10
calculations for fuel.
11
to take off without knowing that the passengers' luggage
12
is being left behind.
13
operate.
14
My mind is open.
It is impossible for the pilot
I just can't see how else he can
You think my mind is closed.
15
open.
16
but I just do not, to my limited knowledge, know how
17
this can happen accidentally.
18
MR TURNER:
I am not a pilot.
I read all my Biggles books,
My Lord, I would agree with that, we cannot
19
know, and my mind is open, all of our minds are open
20
because we are not pilots, but --
21 22 23
MR JUSTICE PETER SMITH: accidentally then? MR TURNER:
I am
So you accept it can't happen So the pilot must have known --
What I am saying is that you framed this as
24
a conviction, deliberate deception on the passengers,
25
that was perpetuated.
That is the framing of it which 30
1 2 3 4 5
is the problem. Then if we turn over the page -MR JUSTICE PETER SMITH:
What should I have said?
That it
might be that it was a deliberate deception? MR TURNER:
My Lord, it is not what you should have said.
6
It is that you have framed a series of questions setting
7
out convictions on serious issues that chime with the
8
claimants' pleading in this case.
9 10 11 12
If we turn over the page, at number 3: "... cannot believe the plane travelled with an empty hold." Again a conviction as to that.
But then it has been
13
suggested by you that Vueling may have loaded the hold
14
with a lucrative commercial freight to pursue profit "at
15
the expense of passengers who could go to hell at the
16
expense of profits".
17
Your Lordship knows that subsequently,
18
an arrangement of that kind between BA and Vueling, if
19
it were to exist, could be described, you said, as
20
a conspiracy.
21 22 23 24 25
These are matters that are strong and proactively put forward, rather than open questions as -MR JUSTICE PETER SMITH:
No, I don't agree with you, but
there we are. I asked the questions because I was very concerned 31
1
that if there was something that looked like the present
2
case that I had been a victim of, it was inevitable that
3
I would have to come out of the case.
4
from the same hymn sheet in that regard.
5
my concern to find out what happened, because I fully
6
accept that if I had been the victim of a deliberate
7
leaving of my luggage, with a desire for making profit,
8
that would inevitably lead to my being unable to carry
9
on with the case.
We are chiming That has been
Conversely, if there was a perfectly
10
acceptable operational reason as to why all of our
11
luggage was left behind and why 40 seats were empty,
12
then there is nothing more to be said.
13
MR TURNER:
Yes, and my first point, my Lord, is that the
14
way that you put this to the chairman showed
15
a conviction on certain --
16
MR JUSTICE PETER SMITH:
I don't agree with you, Mr Turner.
17
You have a certain style, I have a certain style.
18
I find that my style does not lead to any
19
misunderstandings and people know precisely what I am
20
after.
21
write in a way deliberately to obfuscate.
22
open.
23
getting an explanation.
24 25
MR TURNER:
Other people write in euphemisms.
Other people My mind is
All I want is an explanation, but I am not
Except, my Lord, taking at face value, of
course, that your Lordship has stated your mind openly 32
1 2
and straightforwardly -MR JUSTICE PETER SMITH:
Like anything.
Like anything.
3
I find difficult, as a lay person who tends to operate
4
on logical bases, any logical basis why all the luggage
5
would be left behind.
6
MR TURNER:
Yes.
My Lord, what you have done, though, is
7
expressed certain conclusions about the deliberate
8
behaviour and the deliberate deception --
9
MR JUSTICE PETER SMITH:
I haven't expressed any conclusions
10
about deliberate behaviour.
11
appeared to me to be deliberate.
12 13
MR TURNER:
"This was plainly a deliberate decision to leave
a whole flight's luggage behind."
14
MR JUSTICE PETER SMITH:
15
do it accidentally.
16 17 18 19 20
I said that those things
MR TURNER:
I repeat, I don't see how you could
My Lord, I understand that.
We are looking at
this -MR JUSTICE PETER SMITH:
You don't accept it.
Do you
accept -MR TURNER:
-- not from the point of view that your
21
Lordship's motivations were, and I put that entirely to
22
one side; we are looking at this from the point of view,
23
on both sides, as a matter of what the fair-minded and
24
well-informed observer would think.
25
MR JUSTICE PETER SMITH:
No, you're not. 33
You're putting it
1
from your clients' point of view.
2
say what the fair-minded person would be than I would
3
be.
4
You are no better to
Anyway.
MR TURNER:
Well, that is a decision that, if your Lordship
5
was against us, may have to be taken by the
6
Court of Appeal.
7
MR JUSTICE PETER SMITH:
I know full well, Mr Turner,
8
because your solicitors threatened me with that on
9
Monday, that unless I recuse myself today, you are to go
10
to the Court of Appeal.
11
this.
12
You are not going to accept
I know that.
That is the major factor in today's exercise, as far
13
as I am concerned.
14
to become the issue in this case.
15
clients' attitude this week has driven me out of the
16
case for no justified reason.
17
stay in the case, because of their attitude.
18
MR TURNER:
I am not going to allow my position And I fear that your
Because I am not going to
My Lord, these submissions are made in good
19
faith and your Lordship I hope will accept them, on
20
reconsideration and reflection of this hearing.
21
MR JUSTICE PETER SMITH:
I will not accept them.
I of
22
course accept that you are making the submissions in
23
good faith.
24
MR TURNER:
My Lord, may I press ahead --
25
MR JUSTICE PETER SMITH:
But I don't extend it beyond you. 34
1
MR TURNER:
My Lord, may I then turn ahead and complete the
2
survey and ask you, at the end of my submissions, if
3
your Lordship would be so kind as to reflect upon the
4
outcome?
5
The next point is that the questions that you
6
raised, which you see on page 13, a series of detailed
7
questions, also take as their factual starting point and
8
premise the issue of deception, such as:
9 10 11 12 13 14 15 16
"Were the staff instructed to deceive us and, if so, who gave that instruction? "What was ..." MR JUSTICE PETER SMITH:
That can be answered by: no staff
were instructed to deceive us. MR TURNER:
But the underlying premise is that they did
deceive you. MR JUSTICE PETER SMITH:
The plane departed without our
17
luggage; and nobody told us.
18
a deception, unless I am told otherwise.
19
would you describe it as?
20
I regard that as What else
The ground staff rushed us onto the plane, or tried
21
to rush us onto the plane while it was being refueled
22
and, in the traditional Italian way, the fire engine
23
arrived after the refuelling had been completed, and
24
nobody mentioned the fact that: oh by the way, chaps and
25
chapesses, your luggage is not coming with you. 35
It
1
didn't affect me greatly, but what was scandalous about
2
it was the indifference shown to other passengers who
3
were on world tours with young children, who had only
4
their clothes to stand in when they arrived at Gatwick
5
two hours late, kept waiting for 45 minutes.
6
there from BA or Vueling.
7
said: oh, go to the Global Recoveries.
8
was going to happen next.
9
luggage has been left behind in Florence.
Nobody was
We got a tannoy which We all knew what
There we were told: your
10
These were people who had no changes of clothes.
11
Some of them were going on onward flights with all their
12
keys and medicines in the hold.
13
when I spoke to the wonderful Vueling customer care
14
thing, and I pointed out that my medicines were also in
15
my suitcase because they were open and couldn't be
16
carried in my hand luggage, she said: that's up to you.
17 18 19 20
MR TURNER:
I had medicines.
And
Yes.
My Lord, I am not in a position to know, and your Lordship -MR JUSTICE PETER SMITH:
I will speed you up.
I am going to
21
recuse myself, Mr Turner.
Your clients have left me
22
with no alternative, as far as I can see.
23
mean I accept the premise for your application.
24
clients can also rest assured that this complaint will
25
not end here. 36
That does not Your
1
MR TURNER:
My Lord, I am grateful for that decision.
My
2
I ask, in view of that, whether you wish me to continue?
3
Because if that is your Lordship's decision, it may be
4
efficient to --
5
MR JUSTICE PETER SMITH:
I am not going to accept your
6
submissions.
I do not accept that any credible basis
7
has been set out that requires me to recuse myself.
8
I do, however, form the view that this has been taken
9
with an opportunistic approach to carry on the design
10
that people on your side have been doing in this case,
11
to try and get me out if they can.
12
MR TURNER:
My Lord, that we very strongly and with
13
conviction contest.
14
MR JUSTICE PETER SMITH:
You can do it however you like.
15
You can even stand on the rooftops and shout it from
16
there, but I am afraid I don't accept that, especially
17
when we look back historically, when you wrote to the
18
Chancellor and, in effect, suggested that any judge
19
should be appointed to do this case apart from me.
20
MR TURNER:
My Lord, in relation to that, I hope you will
21
have seen the indication in our skeleton that that is
22
not a fair summary of what the submission was.
23
MR JUSTICE PETER SMITH:
I don't accept that either.
24
Anyway, you can make your submissions.
25
other people say.
I will hear what
If people are going to fight to keep 37
1
me on -- and they are not.
2
I had hoped that there would be common sense and that
3
the administrative issues in the CMC could be resolved,
4
and then I could have recused myself after that, so that
5
the case is not further delayed.
6
that your clients won't even agree that.
7
MR TURNER:
8
MR JUSTICE PETER SMITH:
9
I will recuse myself today.
But you are telling me
My Lord, in the -Because I know what will happen.
If I say no, you will go to the Court of Appeal and,
10
whatever else happens, that just kiboshes the whole
11
timetable.
12 13 14
MR TURNER:
If your Lordship says no, then we will take this
to the Court of Appeal, yes. MR JUSTICE PETER SMITH:
I know that.
Your clients are not
15
interested in what I have to say.
16
have been operating on a pre-determined operation to
17
have me removed from the case, whatever I say.
18
MR TURNER:
Since Monday, they
The perspective of British Airways, which they
19
see, I submit, is a clear case, is that the fair-minded
20
and well-informed observer would say that a real risk of
21
bias has arisen in --
22 23 24 25
MR JUSTICE PETER SMITH:
I don't accept that for one minute,
Mr Turner. MR TURNER:
My Lord, in the light of your indication, I have
no desire to hold a prolonged hearing about this. 38
If
1
your Lordship pleases, I will go quickly through the
2
remaining points and I can do so in 15 minutes --
3
MR JUSTICE PETER SMITH:
If you must.
I have read them.
4
I know the Court of Appeal says we have to read them
5
even if we don't accept them; and listen to you even
6
though we don't accept them, even though we have read
7
them.
8 9 10 11
It is over to you, Mr Turner. is going to happen. not. MR TURNER:
I have told you what
You can either carry on or you can
It is entirely up to you. My Lord, if you have taken that decision, I am
12
very grateful for that and we need not discuss the basis
13
for it, and certainly not now.
14
therefore is prepared to recuse yourself from the
15
proceedings now --
16
MR JUSTICE PETER SMITH:
If your Lordship
I repeat, are your clients not even
17
willing for me to deal with the administrative issues on
18
the CMC next week?
19
going to turn on issues as to credibility or bad faith
20
or anything.
21
as I can see.
22
they cannot easily be dealt with.
23
even willing for that to happen?
24 25
MR TURNER:
None of which, it seems to me, are
They are purely procedural matters, as far I can't conceive of any situation where Your clients are not
Those are matters of significance, as we see
them, and we are concerned, in the light of the 39
1
submission of apparent bias, that your Lordship should
2
not hear that --
3
MR JUSTICE PETER SMITH:
4
MR TURNER:
5
MR JUSTICE PETER SMITH:
Am I allowed --
-- application. Am I allowed to say what Hausfeld
6
have said to me about your application in the Bao Xiang
7
or should I not deal with that, what they say?
8
I am not quite sure what happens to your application,
9
which is listed for the CMC which will not take place.
10 11 12 13
MR TURNER:
I would ask your Lordship not to pre-judge or
give any indication about that matter. MR JUSTICE PETER SMITH:
If you --
It is listed for next week, isn't
it?
14
MR TURNER:
15
MR JUSTICE PETER SMITH:
Yes.
If your Lordship -I can't take it out.
16
allow me to take it out.
17
decision.
18
Because
MR TURNER:
You won't
I am not fit to make that
My Lord, if you will recuse yourself from these
19
proceedings, that is all that needs to be done.
20
parties do support, for different reasons, as I say, the
21
question of adjournment, including in relation to BA's
22
application on Bau Xiang.
23 24 25
MR JUSTICE PETER SMITH:
All
You agree that it should be
adjourned, do you? MR TURNER:
This is on the basis that your Lordship has 40
1
informed us that there is not another judge available at
2
this short notice to hear the case next week.
3
been preparing industriously and actively for that
4
hearing.
5
I do not think, however --
6 7
We have applications which we would contest
MR JUSTICE PETER SMITH:
MR TURNER:
9
MR JUSTICE PETER SMITH:
11 12 13 14 15 16 17 18
Have you issued your applications
yet?
8
10
We have
MR TURNER:
Yes. I haven't seen them.
Well, my Lord, they have been.
I do apologise
for that. MR JUSTICE PETER SMITH:
Have skeleton arguments been lodged
yet? MR TURNER:
They have not.
My Lord, our position is -MR JUSTICE PETER SMITH:
How much reading time is there in
it for next week? MR TURNER:
Reading time has not specifically been allocated
19
separately for the hearing next week, which I think is
20
floating to begin from the Monday.
21
What I would say, my Lord, is that in the light of
22
your Lordship's indication, the right thing to do is to
23
act on the recusal now.
24
the course in relation to the July CMC.
25
in the draft order that you have in that bundle, that we
The parties are agreed as to
41
It is indicated
1
provided with our application, at paragraph 2(2).
2
is at tab 3, page 80.
3
be adjourned to the first convenient date after
4
1 October in the Michaelmas term.
5
MR JUSTICE PETER SMITH:
It was that the July CMC should
Before or after the things that
6
were already listed?
7
already for October, haven't you?
8 9
MR TURNER:
Oh yes.
That
You have got three days listed The strikeout.
They would have to be also listed for
the October slot and we would have to find a time where
10
those could also be dealt with.
11
that there is also the Bau Xiang matter coming in,
12
in October, and the parties do need now to be preparing
13
for that too.
14 15 16 17 18 19 20
MR JUSTICE PETER SMITH: remediation? MR TURNER:
Your Lordship is right
What about the stay for
I am not even competent to do that, am I?
My Lord, with respect, there are arguments to be
held in relation to that too. MR JUSTICE PETER SMITH:
You oppose the stay for
remediation, do you? MR TURNER:
My Lord, I am not going to develop the
21
submission on that now.
22
to put before your Lordship concerning the right stage
23
in the litigation, when it has been reached.
24 25
MR JUSTICE PETER SMITH:
But yes, we will have arguments
I thought we flagged that up
several months ago and it was all resolved. 42
Never mind.
1
Anything more to say?
2
MR TURNER:
3
MR JUSTICE PETER SMITH:
4
My Lord, no.
Thank you, Mr Turner.
Mr Harris, do you want to say anything?
5 6
I am grateful, my Lord.
Submissions by MR HARRIS MR HARRIS:
My Lord, just a few brief remarks, on the
7
premise that your Lordship is going to recuse himself
8
from the case.
9 10 11
MR JUSTICE PETER SMITH:
You are not going to try to
persuade me to the contrary, are you? MR HARRIS:
It is a difficult situation, my Lord, and the
12
answer is no.
13
instructions that we maintain an entirely neutral stance
14
on the dispute that has arisen.
15
Lordship's remarks made at 12.45 today that you "can't
16
expect anyone else to become involved in it because they
17
don't know anything about it".
18
that position.
19
are very clear on this point.
20
I have very clear and express
I would just echo your
We find ourselves in
That is one reason.
But my instructions
We remain entirely.
Your Lordship will also appreciate -- and this is
21
one of the things I wanted to raise in any event -- that
22
another reason for remaining neutral is there are costs
23
associated with this sort of an application and we
24
effectively cannot find ourselves dragged into
25
an application of this type, that has potential cost 43
1 2 3
consequences for our client. That is the clear stance and those are the two reasons.
4
I am in your Lordship's hands as to order, but I do
5
wish to address you briefly on paragraph 3 of the draft
6
order that BA have put forward, which is that costs of
7
the recusal application should be in the case.
8
object to that.
9
MR TURNER:
There's no order as to costs.
10
MR HARRIS:
Oh well, I am grateful.
If it is proposed no
11
order, we have no difficulty with that.
12
That goes.
13
We do
I am grateful.
Mr Turner is correct to say that all parties' stance
14
is that there should now be an adjournment of the CMC
15
that is currently listed for next week.
16
different reasons for that from the different parties,
17
but I am not keen to develop them if your Lordship is
18
already sufficiently persuaded that it cannot, in
19
reality, take place next week.
20
jointly is that it should be relisted to be heard on the
21
first available date in the Michaelmas term, when a new
22
judge is identified.
23 24 25
There are
All the parties' stance
The only slight -- unless your Lordship would like me to explain a bit further why, then I shall not do so. What I should just say, though, is that Mr Turner 44
1
has made the submission that the Bau Xiang application,
2
the strikeout, should happen at the same time as the
3
relisted CMC and we don't take the same view.
4
separate applications.
5
separate, they would not have happened together next
6
week.
7
five or six days where all the CMC issues can be listed
8
and then simultaneously or alongside or one after the
9
other the Bau Xiang strikeout application.
10
They are
They are currently already
So there would be no need to find a slot of, say,
That is not
a spectre that need worry us.
11
I am really in your Lordship's hands.
There is
12
a joint position about adjournment.
13
unfortunate circumstances, but that is the position.
14
MR JUSTICE PETER SMITH:
15
MR JOWELL:
It has arisen in
Mr Jowell?
My Lord, we support Mr Turner's position and
16
I don't think it is necessary for me to elucidate
17
further.
18 19
We also support the need for an adjournment.
MR JUSTICE PETER SMITH:
Thank you.
(Judgment given, subject to approval, separately
20
transcribed)
21
I will, if necessary, adjourn the application that
22
BA issued, I think, yesterday for a strikeout in the Bau
23
Xiang litigation as well, to be considered as part of
24
the other matters which the judge will be required to
25
do.
And I will make an order as to costs. 45
1
Mr Patton, can you draw that order up, please?
2
MR PATTON:
3
MR JUSTICE PETER SMITH:
4
MR PATTON:
5
MR JUSTICE PETER SMITH:
6
Yes, my Lord. And I want that by 4 o'clock today.
Yes, my Lord. Email it to my clerk.
Thank you, Mr Turner in particular, for the measured
7
and reasonable way in which you put forward what I know
8
was a very difficult application for you to make.
9
MR TURNER:
My Lord, I am very grateful for your Lordship's
10
decision.
11
be obvious.
12
BA does disagree with the reasons, that would
The only point that I would raise in relation to the
13
order is the date of 2 October and whether that is
14
manageable all round.
15
the first available or convenient date from --
16 17
MR JUSTICE PETER SMITH:
If your Lordship were able to say
I know you lot.
That could be
next January.
18
MR TURNER:
Well --
19
MR JUSTICE PETER SMITH:
This is only to welcome the new
20
judge to the circus.
You don't need to have the full
21
panoply there.
22
as you find out who the new judge is, start
23
a communication exercise to reduce it.
24
should do it on the date which is fixed for the current
25
strikeout.
And in fact, you could probably, as soon
46
So maybe we
1
MR TURNER:
Yes, yes.
2
MR JUSTICE PETER SMITH:
3
MR TURNER:
4
MR JUSTICE PETER SMITH:
What date is the next strikeout?
That is 12 October. The only problem about that is that
5
will then mean the strikeout will be vacated.
6
parties want that?
7 8 9
MR TURNER:
Do the
My Lord, we will stay with the 2 October and we
will ensure that that is ... MR JUSTICE PETER SMITH:
I thought so, the 2nd.
All right.
10
Now, you will want a transcript of my decision, but you
11
are not to have it until I have approved it.
12
MR TURNER:
13
today.
14
Yes, my Lord.
MR JUSTICE PETER SMITH:
I think LiveNote is operational
I know you are reading it, but
15
I have not got the LiveNote.
16
I have.
17 18 19
MR TURNER:
Oh yes, I have.
Yes,
But we will, of course, wait for your Lordship
to approve the transcript. MR JUSTICE PETER SMITH:
So the transcript writers will
20
provide the judgment in draft form, separate from the
21
transcript of the hearing.
22
Thank you all very much.
What do you want me to do
23
with the big bag I have got, apart from sending it to
24
Private Eye?
25
Commission which I hold at the moment to, I think, your
It is the unredacted decision of the
47
1
order.
2
MR HARRIS:
My Lord, you could always send it to us!
3
MR TURNER:
If your Lordship sends it back to Slaughter and
4
May --
5 6
MR JUSTICE PETER SMITH: to you.
7
MR TURNER:
8
(1.38 pm)
9
If you wait, my clerk will give it
Yes.
(The hearing adjourned until a further date)
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 48
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 49
1
INDEX
2
PAGE
3
Submissions by MR TURNER .............................1
4
Submissions by MR HARRIS ............................43
5
Judgment given, subject to approval, ................45 separately transcribed
6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 50
