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1 Wednesday, 22 July 2015 2 (11.00 am) 3 (Proceedings delayed) 4
(12.01 pm) 5 MR JUSTICE PETER SMITH: Yes. 6 MR TURNER: May it
please the court. I appear today with 7 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 For the La
Gataina claimants, Mr Greene of Edwin Coe 11 appears, on the second
row at the end. 12 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 MR JUSTICE PETER SMITH: I asked you to do
something this 20 morning. 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
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1 MR TURNER: My Lord, this was perhaps an oversight. May 2 I
tell you what was done? 3 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 MR JUSTICE PETER SMITH: It ignores the fact that
unredacted 15 ones are on the court file. 16 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
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1 week? 2 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: I have the present one.
What else 13 is there? 14 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: What is that for? 19 MR
TURNER: 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 MR JUSTICE PETER SMITH: That hasn't arrived
yet. 23 I have a letter from Hausfeld, which I think refers 24 to
that application. Have you seen that? 25 MR TURNER: I am not sure
which letter your Lordship means. 3
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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 MR TURNER: Yes. I am grateful to your Lordship for 8
reminding me of that. 9 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 MR JUSTICE
PETER SMITH: Yes. That's the strikeout because 14 of lack of
authority? 15 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. On that basis, we say that it 20 is right that
those claimants should be removed from 21 their claim. That was one
of the matters due to be 22 heard next week. 23 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
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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: I am asking you: what has happened 12 to the luggage?
13 MR TURNER: 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 MR JUSTICE PETER SMITH: In that
case, do you want me to 21 order your chief executive to appear
before me today? 22 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
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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? It has 4 been two weeks since
that happened now. Or are you 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 MR TURNER: I am not saying that, my Lord. If I
may, I will 8 develop the submissions on this because -- 9 MR
JUSTICE PETER SMITH: No, I want an answer to my 10 question. If you
are not going to -- 11 MR TURNER: In that case, let me answer both
of those 12 questions. 13 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. Our position, as set out in the 16
submissions that we have made and the letters, is that 17 this
dispute extends beyond a mere dispute about mislaid 18 luggage. 19
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
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1 you? I just find that an impossible submission. I just 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 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. BA's associated company
retained my luggage. 15 It is not my fault that that happened. I am
the victim. 16 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. It is just 20 ridiculous. 21 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
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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. You were contacted
the first 12 thing on Monday morning. 13 MR TURNER: 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. It is 17 that which is objectionable in that connection.
We do 18 understand that if a personal dispute arises it is 19
necessary to bring it to the attention of the parties. 20 MR
JUSTICE PETER SMITH: When you sign letters, how do you 21 sign
them? 22 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. Your clients have
8
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1 personalised this. 2 MR TURNER: My Lord, with respect, no, and
they seek not to 3 do so. Where a personal dispute arises for a
legal 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: 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. That is the answer to that. 12 But I come back to my first
question. What has 13 happened to the luggage? You don't know,
obviously. Do 14 your solicitors know? 15 MR TURNER: Our solicitors
do not know, because of the 16 separation that I have told your
Lordship we are 17 implementing. 18 MR JUSTICE PETER SMITH: What I
will tell do is I will rise 19 until 12.45 and you can find out. 20
MR TURNER: My Lord, with respect, we are not willing to do 21 that.
If I may -- 22 MR JUSTICE PETER SMITH: Do I have to order you to do
it, 23 then? 24 MR TURNER: My Lord, I understand that, and if your
Lordship 25 makes an order we will have to address that. But may I,
9
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1 before your Lordship makes that order, please develop my 2
submissions? Then I will ask your Lordship to reflect 3 on them,
before your Lordship makes that order. 4 MR JUSTICE PETER SMITH:
No, I am not going to do that, 5 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. Your reasons might be as you say, but
what is 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
This is very serious, not merely for me, but for all 15 the parties
involved in this litigation. I accept, of 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: Yes, yes. 21 MR JUSTICE PETER SMITH: 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
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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. That has 9 been my
stance ever since I contacted the chairman. 10 I contacted the
chairman because the BA helpline is 11 misdescribed. Because when I
contacted them, they said, 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. That appears to be irrelevant. 15 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. So when you are 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 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
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1 so I sent him an email. 2 That is reinforced by an article
which I referred to 3 in the correspondence. Apparently he likes
reading 4 customers' emails. It doesn't appear to be necessarily 5
he does anything about it, but he obviously likes 6 reading them
over his breakfast. 7 So your clients must know now, nearly two
weeks 8 after the event, what happened to the luggage. 9 MR TURNER:
My Lord -- 10 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. You can
reconsider 16 your position and I will decide what I am going to
do. 17 MR TURNER: My Lord, I do understand that. May I make two 18
observations before you rise? 19 The first is: it would be best, in
my submission, 20 and right, if I can make the application on
apparent 21 bias now. I entirely accept, and your Lordship is 22
correct, that you are entitled to test the applicant's 23 basis for
saying that there is apparent bias. 24 MR JUSTICE PETER SMITH: I
don't agree, Mr Turner, because 25 if your client comes back and
says, "there is no 12
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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. I have 4 accepted that always. 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 MR TURNER: Our submission is that the problem
of apparent 9 bias arises regardless of the answer to that
particular 10 question. 11 MR JUSTICE PETER SMITH: I don't agree
with you. 12 MR TURNER: May I perhaps explain why that is our
position? 13 MR JUSTICE PETER SMITH: No. I want an answer to my 14
question first. 15 MR TURNER: 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. We
think that to suggest that there is 25 a deliberate lack of
openness with your Lordship, 13
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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. I
do not wish to make findings like that. But 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 an inference. Judges regularly draw
inferences. 11 It is up to you. Your client knows what happened to
12 the luggage. 13 MR TURNER: My Lord, with respect, that is not,
as I say, 14 an inference that can fairly be drawn. 15 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 MR TURNER: My
instructions are to have kept the matters 21 separate. 22 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. But BA as a group, as 14
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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? I mean, I am 5 intrigued. It might be for some
reason they only had 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.
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. But then I don't 17 operate airlines. I don't know
what goes on. But I do 18 know this, Mr Turner: it is clearly
within the knowledge 19 of your client to explain. 20 MR TURNER: My
Lord, you know, of course, that this was not 21 a BA aeroplane.
This was another operator. 22 MR JUSTICE PETER SMITH: In the same
group. 23 MR TURNER: This is a Spanish low cost operator. 24 MR
JUSTICE PETER SMITH: That itself is an interesting 25 story,
because I bought my ticket with BA and I was 15
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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 MR JUSTICE PETER SMITH: No. You
mean passengers are 8 packaged up and flogged off to somebody else?
9 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. This is called 13 code sharing. It is a term
in general usage. 14 MR JUSTICE PETER SMITH: I didn't contract with
Vueling. 15 I contracted with BA. I signed up with BA. BA took my
16 money. BA had the responsibility for my luggage. In 17 fact, BA
had the responsibility for me being able to get 18 onto the flight.
Your code sharing now explains to me 19 why the plane was possibly
overloaded or underloaded, 20 because the people might have code
shared more than 21 there are(?). But my contract was with BA and,
frankly, 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 actualit. 25 MR TURNER: My Lord, I do not know
that British Airways have 16
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1 said that it is nothing to do with them. As I say, my 2
understanding is that this is being investigated as 3 expeditiously
as possible in the ordinary course of 4 events. All I am saying is
that, as your Lordship 5 rightly says, BA, in the capacity of this
litigation, is 6 not investigating in parallel your Lordship's
personal 7 dispute. 8 MR JUSTICE PETER SMITH: That was a decision
that your 9 solicitors and clients, and possibly you, unilaterally
10 made. I think it is the wrong decision, and I don't see 11 how
you can uncouple the two events. We can develop 12 that later. 13
In the meantime, 20 to 1. I will rise and you can 14 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
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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. Is that
right? 5 MR TURNER: All parties agree, but perhaps for different 6
reasons, that the CMC next week should be adjourned in 7 these
circumstances. 8 MR JUSTICE PETER SMITH: So if I found another
judge, that 9 would be happy for everyone, would it? 10 MR TURNER:
I can't speak for other parties. BA would deal 11 with that. 12 MR
JUSTICE PETER SMITH: The next judge might not be on your 13
solicitors' acceptable judge list. 14 MR TURNER: My Lord, our
solicitors do not have 15 an acceptable judge list. 16 MR JUSTICE
PETER SMITH: What the phrase I'm looking for? 17 I hear what you
say, Mr Turner. 18 MR TURNER: My Lord, that is the position. 19 MR
JUSTICE PETER SMITH: Mm-hm. I hear what you say. 20 Does anybody
want to say anything else at this 21 stage? 22 MR HARRIS: No, my
Lord. 23 MR JUSTICE PETER SMITH: 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
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1 MR TURNER: My Lord, understood. 2 (12.25 pm) 3 (A short break)
4 (12.40 pm) 5 MR JUSTICE PETER SMITH: Yes? 6 MR TURNER: 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: What does that mean? 19 MR TURNER: 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 MR JUSTICE PETER SMITH: You have half
an hour for your 25 submissions in total. 19
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1 MR TURNER: I am obliged, my Lord. 2 We say that the position
of apparent bias arises 3 now. It arises from the content of the
emails that you 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 The grounds are set out in our
skeleton argument at 9 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
In answer to the points that your Lordship has made, 15 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. It is not something
that potentially arises only 23 later, depending on what BA answers
to your questions. 24 Fourth, this is not a matter where the
explanations 25 that your Lordship has given, concerning why you
wrote 20
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1 to the chairman, resolve the problem. 2 My Lord, I can be very
brief on the legal 3 propositions. You should have two files; one
of which 4 is an authorities file. I can either articulate the 5
propositions without going there or else I can show your 6 Lordship
some relevant passages. 7 MR JUSTICE PETER SMITH: You know, I think
I might remember 8 these authorities. 9 MR TURNER: I understand, my
Lord. 10 Tab 5, one that your Lordship may, with regret, 11
remember is the Lees Millais case. 12 MR JUSTICE PETER SMITH: I
have no regret about that 13 decision. 14 MR TURNER: Sorry, my
Lord? 15 MR JUSTICE PETER SMITH: I have no regret about that 16
decision. 17 MR TURNER: My Lord, I understand. 18 MR JUSTICE PETER
SMITH: You don't, because you don't know 19 what happened in the
case. 20 I will tell you what happened in the case, because 21 this
demonstrates the problems you have. 22 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
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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. So I
have no regrets about Millais. 25 I have plenty of regrets about
the way in which the 22
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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. I was accused of going into 8 the forum, but given that case,
and indeed given this 9 case, if this issue is going to be
resolved, it can only 10 be resolved between you, on behalf of your
clients, and 11 me. I can't expect anybody else to become involved
in 12 it, (a) because they know nothing about it, (b) it is 13
nothing to do with them. 14 The Court of Appeal has not yet come up
with 15 a procedure. Had I acceded to what happened in the 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. That the Court
of Appeal 22 considered acceptable. 23 Your clients' solicitors at
least brought, I think, 24 Hausfeld into the correspondence. But
equally, these 25 things are so important they cannot be dealt with
by 23
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1 letters. That is why I did not respond to your 2 solicitors'
requirement for me to recuse myself by their 3 letter delivered on
Monday. It cannot be done. I would 4 like it not to be done. I
don't wish my private affairs 5 to be ventilated publicly. It comes
with the job 6 description. 7 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. I don't know any other way it
can be 12 dealt with. If you can think of something, I am open to
13 suggestions. 14 MR TURNER: My Lord, two observations. 15 The
first is I make no comment about the facts of 16 that case or
whether it ended unhappily or not. I refer 17 it to only for the
legal propositions in law. 18 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: I did that. I did that -- 25 MR
TURNER: 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. That
was the problem. 5 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. And again, that is a matter of 19 perception which we
rely on, not a matter of necessary 20 reality. 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. That was suggested in paragraph 7 of
your 25 Friday letter. 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. In tab 2, 3 if you go to page
36, which is within your letter of 4 Friday. If you go to the end
of paragraph 7, you said: 5 "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 Your
Lordship fairly said a little earlier that the 10 issues relate to
the reasons for the non-carriage -- 11 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: We are ad item. 25 MR TURNER: Yes, we are ad idem that
therefore this is not 27
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1 what the dispute really concerns. The issues relate to 2 the
reasons why the whole flight's luggage were not 3 carried, and
associated matters. 4 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? The emails to
the chairman make a series of 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. We have given some of
the 13 references. Some of these are couched as conclusions, 14
convictions, but not even as possibilities. 15 If you have the
first email and look to the bottom 16 of page 12, right at the
bottom: 17 "... 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? Don't just say: I have no instructions. 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: My Lord, I am not wishing to block your
28
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1 Lordship's question. I simply do not know how this may 2 have
arisen; whether there may have been some 3 administrative error --
4 MR JUSTICE PETER SMITH: 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 MR TURNER: My Lord, I simply cannot speculate.
What I can 8 say is that to arrive at the conclusion -- 9 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: My Lord, with respect -- 13 MR JUSTICE PETER SMITH: They
have the answer. They know 14 the answer. 15 MR TURNER: Your
Lordship says that, but there is 16 a complaint with BA which is or
should be being dealt 17 with expeditiously. There certainly, and I
can say this 18 on instructions -- 19 MR JUSTICE PETER SMITH: What
is the timetable for 20 expedition? 21 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
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1 MR JUSTICE PETER SMITH: I don't believe I'll ever get 2 an
answer. 3 MR TURNER: My Lord, that is said on instructions. 4
Returning to the email, the "deliberate decision" 5 not to carry
the luggage. At the bottom of the page, 6 paragraph 2, the
perpetuation of a "deliberate deception 7 that everything was
proceeding as normal" by the staff. 8 MR JUSTICE PETER SMITH: Once
again, the pilot has to know 9 the weight of the plane. He has to
approve the 10 calculations for fuel. It is impossible for the
pilot 11 to take off without knowing that the passengers' luggage
12 is being left behind. I just can't see how else he can 13
operate. 14 My mind is open. You think my mind is closed. I am 15
open. I am not a pilot. I read all my Biggles books, 16 but I just
do not, to my limited knowledge, know how 17 this can happen
accidentally. 18 MR TURNER: 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 MR JUSTICE PETER SMITH: So you
accept it can't happen 22 accidentally then? So the pilot must have
known -- 23 MR TURNER: 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 is the problem. 2 Then if we turn over the page -- 3 MR
JUSTICE PETER SMITH: What should I have said? That it 4 might be
that it was a deliberate deception? 5 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 If we turn over the
page, at number 3: 10 "... cannot believe the plane travelled with
11 an empty hold." 12 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 These
are matters that are strong and proactively 22 put forward, rather
than open questions as -- 23 MR JUSTICE PETER SMITH: No, I don't
agree with you, but 24 there we are. 25 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. We are chiming 4 from the same hymn
sheet in that regard. That has been 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. 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.
Other people write in euphemisms. Other people 21 write in a way
deliberately to obfuscate. My mind is 22 open. All I want is an
explanation, but I am not 23 getting an explanation. 24 MR TURNER:
Except, my Lord, taking at face value, of 25 course, that your
Lordship has stated your mind openly 32
-
1 and straightforwardly -- 2 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. I said that those things 11 appeared to me to
be deliberate. 12 MR TURNER: "This was plainly a deliberate
decision to leave 13 a whole flight's luggage behind." 14 MR
JUSTICE PETER SMITH: I repeat, I don't see how you could 15 do it
accidentally. 16 MR TURNER: My Lord, I understand that. We are
looking at 17 this -- 18 MR JUSTICE PETER SMITH: You don't accept
it. Do you 19 accept -- 20 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. You're putting it 33
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1 from your clients' point of view. You are no better to 2 say
what the fair-minded person would be than I would 3 be. Anyway. 4
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. You
are not going to accept 11 this. I know that. 12 That is the major
factor in today's exercise, as far 13 as I am concerned. I am not
going to allow my position 14 to become the issue in this case. And
I fear that your 15 clients' attitude this week has driven me out
of the 16 case for no justified reason. Because I am not going to
17 stay in the case, because of their attitude. 18 MR TURNER: 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
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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 "Were the staff instructed to deceive us and, if so, 10 who
gave that instruction? 11 "What was ..." 12 MR JUSTICE PETER SMITH:
That can be answered by: no staff 13 were instructed to deceive us.
14 MR TURNER: But the underlying premise is that they did 15
deceive you. 16 MR JUSTICE PETER SMITH: The plane departed without
our 17 luggage; and nobody told us. I regard that as 18 a
deception, unless I am told otherwise. What else 19 would you
describe it as? 20 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. It 35
-
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. Nobody was 6 there from BA or Vueling. We got a tannoy
which 7 said: oh, go to the Global Recoveries. We all knew what 8
was going to happen next. There we were told: your 9 luggage has
been left behind in Florence. 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. I had medicines.
And 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 MR TURNER: Yes. 18 My
Lord, I am not in a position to know, and your 19 Lordship -- 20 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. That does not 23 mean I accept
the premise for your application. Your 24 clients can also rest
assured that this complaint will 25 not end here. 36
-
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. I will hear
what 25 other people say. If people are going to fight to keep
37
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1 me on -- and they are not. I will recuse myself today. 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. But you are telling me 6 that your clients won't
even agree that. 7 MR TURNER: My Lord, in the -- 8 MR JUSTICE PETER
SMITH: Because I know what will happen. 9 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 MR TURNER: If your Lordship
says no, then we will take this 13 to the Court of Appeal, yes. 14
MR JUSTICE PETER SMITH: I know that. Your clients are not 15
interested in what I have to say. Since Monday, they 16 have been
operating on a pre-determined operation to 17 have me removed from
the case, whatever I say. 18 MR TURNER: 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 MR JUSTICE PETER SMITH: I don't
accept that for one minute, 23 Mr Turner. 24 MR TURNER: My Lord, in
the light of your indication, I have 25 no desire to hold a
prolonged hearing about this. If 38
-
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 It is over to you, Mr Turner. I have told
you what 9 is going to happen. You can either carry on or you can
10 not. It is entirely up to you. 11 MR TURNER: 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. If
your Lordship 14 therefore is prepared to recuse yourself from the
15 proceedings now -- 16 MR JUSTICE PETER SMITH: I repeat, are your
clients not even 17 willing for me to deal with the administrative
issues on 18 the CMC next week? None of which, it seems to me, are
19 going to turn on issues as to credibility or bad faith 20 or
anything. They are purely procedural matters, as far 21 as I can
see. I can't conceive of any situation where 22 they cannot easily
be dealt with. Your clients are not 23 even willing for that to
happen? 24 MR TURNER: Those are matters of significance, as we see
25 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: Am I allowed -- 4 MR TURNER:
-- application. 5 MR JUSTICE PETER SMITH: 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? Because 8 I am not
quite sure what happens to your application, 9 which is listed for
the CMC which will not take place. 10 MR TURNER: I would ask your
Lordship not to pre-judge or 11 give any indication about that
matter. If you -- 12 MR JUSTICE PETER SMITH: It is listed for next
week, isn't 13 it? 14 MR TURNER: Yes. If your Lordship -- 15 MR
JUSTICE PETER SMITH: I can't take it out. You won't 16 allow me to
take it out. I am not fit to make that 17 decision. 18 MR TURNER:
My Lord, if you will recuse yourself from these 19 proceedings,
that is all that needs to be done. All 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 MR
JUSTICE PETER SMITH: You agree that it should be 24 adjourned, do
you? 25 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. We have 3 been
preparing industriously and actively for that 4 hearing. We have
applications which we would contest 5 I do not think, however -- 6
MR JUSTICE PETER SMITH: Have you issued your applications 7 yet? 8
MR TURNER: Yes. 9 MR JUSTICE PETER SMITH: I haven't seen them. 10
MR TURNER: Well, my Lord, they have been. I do apologise 11 for
that. 12 MR JUSTICE PETER SMITH: Have skeleton arguments been
lodged 13 yet? 14 MR TURNER: They have not. 15 My Lord, our
position is -- 16 MR JUSTICE PETER SMITH: How much reading time is
there in 17 it for next week? 18 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. The parties are agreed as to 24 the course in relation
to the July CMC. It is indicated 25 in the draft order that you
have in that bundle, that we 41
-
1 provided with our application, at paragraph 2(2). That 2 is at
tab 3, page 80. It was that the July CMC should 3 be adjourned to
the first convenient date after 4 1 October in the Michaelmas term.
5 MR JUSTICE PETER SMITH: Before or after the things that 6 were
already listed? You have got three days listed 7 already for
October, haven't you? The strikeout. 8 MR TURNER: Oh yes. They
would have to be also listed for 9 the October slot and we would
have to find a time where 10 those could also be dealt with. Your
Lordship is right 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 MR JUSTICE PETER SMITH: What about the stay for 15
remediation? I am not even competent to do that, am I? 16 MR
TURNER: My Lord, with respect, there are arguments to be 17 held in
relation to that too. 18 MR JUSTICE PETER SMITH: You oppose the
stay for 19 remediation, do you? 20 MR TURNER: My Lord, I am not
going to develop the 21 submission on that now. But yes, we will
have arguments 22 to put before your Lordship concerning the right
stage 23 in the litigation, when it has been reached. 24 MR JUSTICE
PETER SMITH: I thought we flagged that up 25 several months ago and
it was all resolved. Never mind. 42
-
1 Anything more to say? 2 MR TURNER: My Lord, no. I am grateful,
my Lord. 3 MR JUSTICE PETER SMITH: Thank you, Mr Turner. 4 Mr
Harris, do you want to say anything? 5 Submissions by MR HARRIS 6
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 MR
JUSTICE PETER SMITH: You are not going to try to 10 persuade me to
the contrary, are you? 11 MR HARRIS: It is a difficult situation,
my Lord, and the 12 answer is no. I have very clear and express 13
instructions that we maintain an entirely neutral stance 14 on the
dispute that has arisen. I would just echo your 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". We find ourselves in 18 that position. That is one reason. But
my instructions 19 are very clear on this point. We remain
entirely. 20 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 consequences for our client. 2 That is the clear stance and
those are the two 3 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. We do 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. I am grateful. 12 That goes. 13 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. There are 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. All the parties' stance 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 The only
slight -- unless your Lordship would like 24 me to explain a bit
further why, then I shall not do so. 25 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. They are 4 separate applications. They
are currently already 5 separate, they would not have happened
together next 6 week. So there would be no need to find a slot of,
say, 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. That is not 10 a spectre that need
worry us. 11 I am really in your Lordship's hands. There is 12 a
joint position about adjournment. It has arisen in 13 unfortunate
circumstances, but that is the position. 14 MR JUSTICE PETER SMITH:
Mr Jowell? 15 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. We also support the need for an adjournment. 18 MR JUSTICE
PETER SMITH: Thank you. 19 (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:
Yes, my Lord. 3 MR JUSTICE PETER SMITH: And I want that by 4
o'clock today. 4 MR PATTON: Yes, my Lord. 5 MR JUSTICE PETER SMITH:
Email it to my clerk. 6 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. BA does
disagree with the reasons, that would 11 be obvious. 12 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. If your
Lordship were able to say 15 the first available or convenient date
from -- 16 MR JUSTICE PETER SMITH: I know you lot. That could be 17
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. And in fact, you could probably,
as soon 22 as you find out who the new judge is, start 23 a
communication exercise to reduce it. So maybe we 24 should do it on
the date which is fixed for the current 25 strikeout. 46
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1 MR TURNER: Yes, yes. 2 MR JUSTICE PETER SMITH: What date is
the next strikeout? 3 MR TURNER: That is 12 October. 4 MR JUSTICE
PETER SMITH: The only problem about that is that 5 will then mean
the strikeout will be vacated. Do the 6 parties want that? 7 MR
TURNER: My Lord, we will stay with the 2 October and we 8 will
ensure that that is ... 9 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: Yes, my Lord. I think LiveNote is operational 13 today. 14
MR JUSTICE PETER SMITH: I know you are reading it, but 15 I have
not got the LiveNote. Oh yes, I have. Yes, 16 I have. 17 MR TURNER:
But we will, of course, wait for your Lordship 18 to approve the
transcript. 19 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? It is the unredacted decision of the 25
Commission which I hold at the moment to, I think, your 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 MR JUSTICE PETER SMITH: If you wait, my clerk will give it 6 to
you. 7 MR TURNER: Yes. 8 (1.38 pm) 9 (The hearing adjourned until a
further date) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
48
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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
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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