Scrutiny of judicial conduct

The story of Mr Justice Peter Smith has all the makings of a Greek tragedy. As you read this, a new scene is being written by the gods of appeal. Will they now visit hubris with nemesis?

Our legend begins in 2002 when, in a nod to diversity, the fates appoint a chancery judge from outside London. Not quite 50, educated at Bridlington and Cambridge, Peter Smith QC is a former lecturer at Manchester University. Well regarded by fellow members of the northern circuit and former academic colleagues, including Baroness Hale, he has every prospect of success on the bench.

But he is cast in the role of a chippy northerner, determined to show he is not another of those boring chancery judges that nobody has heard of. His opportunity comes in 2006, when he hears and dismisses a breach-of-copyright claim brought against Dan Brown, best-selling author of The Da Vinci Code. Smith achieves public notoriety for burying his own coded message within the 70-page judgment he delivers just three weeks after the hearing.

Upholding the ruling in 2007, the Court of Appeal takes no objection to his injudicious frivolity. But Lord Justice Lloyd complains that Smith’s judgment is neither easy to read nor to understand.

Later that year, I write a newspaper article saying it is time for Smith to leave the bench. That, we have learned, is something he had considered. It turns out that Addleshaw Goddard had offered him a job. Talks continued for several months until the solicitors decided they could not afford him.

‘I feel you have wasted my time,’ Smith tells the partner involved. ‘You have allowed the bean-counters to prevail.’

Unfortunately, another partner in Addleshaws is being sued as a trustee in a case Smith himself is trying. The Court of Appeal says that ‘a fair-minded and informed observer would conclude that the judge was biased against Addleshaw Goddard and its partners’. He is removed from the case and reprimanded for misconduct.

In the summer of 2015, Smith is trying a case against British Airways. In a spooky coincidence, Smith has recently returned from holiday on a flight booked through the same airline. His aircraft left Florence without any luggage on board. Smith wonders whether this was deliberate. If so, the similarity between his own experience and the case before him may preclude him from hearing the claim. After threatening to order the airline’s chief executive to come to court, he agrees to stand aside.

Inquiries are launched by the Judicial Conduct Investigations Office. I write an article in the Gazette accusing Smith of a ‘profound misjudgement’. Lord Pannick QC, in The Times, calls for action to address Smith’s ‘injudicious conduct’.

Pannick’s article appears in September 2015. At the time, Smith is writing a reserved judgment. The defendant, a Saudi prince, is represented by two counsel from Blackstone Chambers. Pannick is a member of those chambers and has represented the prince at an earlier hearing. Smith gives judgment in November and finds for the claimant, Janan Harb.

In October, though, Smith has phoned Anthony Peto QC, joint head of Blackstone Chambers, to berate him. In a letter he writes in December, Smith tells Peto that Pannick’s ‘quite outrageous article’ has caused him ‘a lot of grief’. Smith says he has previously supported applications for silk from Blackstone Chambers but will not do so again. ‘It is obvious that Blackstone takes but does not give,’ the judge says.

The prince has already sought permission to appeal against Smith’s judgment. Citing the judge’s ‘private and confidential’ letter, which thus becomes a public document, the prince says a ‘fair-minded and informed observer would conclude that there was a real possibility that the judge’s apparent bias towards Blackstone Chambers would affect his decisions in relation to this claim’.

A decision on the prince’s appeal is expected soon. The most likely outcome must be a retrial. Yet again, Smith can expect to be criticised by the Court of Appeal. Yet again, the lord chancellor and the lord chief justice will have to decide whether Smith’s behaviour amounts to misconduct.

If the Addleshaws case is anything to go by, there is every chance they will decide his letter to Peto and his handling of Harb’s claim established precisely that. In 2008, Smith was allowed to continue sitting. This time, things may be different. I suspect he will refuse to step down unless he is promised the salary he could expect to earn during his remaining six years on the bench. But that would be unthinkable.

Smith holds office ‘during good behaviour, subject to a power of removal by Her Majesty on an address presented to her by both houses of parliament’. It’s a power that has never been exercised in England and Wales. Not yet, anyway.