A High Court judge, who recused himself from an air cargo price-fixing case against British Airways, has used a court judgment to chastise the airline, suggesting it deliberately left behind his and a planeload of passengers’ luggage for a ‘more profitable cargo’.
BA accused Mr Justice Peter Smith of bias after he complained to the airline when it left behind an entire planeload of luggage on a flight from Florence to London he and his wife were on earlier this month.
Smith has been the nominated judge since November for an action against BA by more than 300 claimants, and has been involved in the case since March last year.
Although Smith said BA had used the dispute to make an ‘opportunistic application’ to get him off a case which he claimed the airline had already tried to remove him from before, he recused himself to prevent his presence distracting the parties from the case.
But before confirming his decision to recuse himself, Smith used the judgment to voice his disbelief at how BA had managed to lose the luggage and at its lack of explanation, warning the airline that he will continue his investigation in a private capacity ‘with the vigour for which I am known’.
He said many passengers were left in distress after BA informed them that their luggage had been left behind with ‘no explanation, no representative, nothing. Nothing from BA. Nothing from Vueling [run by BA’s parent company International Airlines Group] who provided the flight’.
‘The reason I was concerned really ought to have been blindingly obvious, although some submissions by [the defence barrister instructed by Slaughter and May] Mr Turner QC today would suggest otherwise,’ he said.
‘The situation is that I do not know how a plane departs with all of the passengers’ luggage left behind, unless that is a deliberate decision. It is an easy-enough question to pose and an easy enough question to answer.’
He added: ‘I am 12 days down the line and if those simple questions cannot be answered in 12 days with expedition, I really feel for other people who have the misfortune to fly with BA.’
Smith suggested that BA’s lack of explanation meant there was no logical explanation: ‘The reason why BA have not replied, I conclude, is because there has been some kind of operation designed to maximise profits at the expense of their regular customers. Further I am satisfied they want to exploit the situation to pressure me into coming off this case.’
He explained that he had realised there would be a potential conflict of interest after his luggage was lost and so sent an email to the chairman, but BA’s lawyers used this to allege there would ‘immediately be a perception of bias’.
Smith said: ‘I believe a reasonably minded observer would see a judge with a problem trying to resolve that issue and finding the parting question being obstructive and unwilling to address the issue and find a solution.’
But he said he would recuse himself as it would not be appropriate for a recusal application to be processed, due to the costs this would incur, and the already complex nature of the litigation.
‘It is a regrettable feature that some litigants now regard a recusal application as one of the tools they can deploy in aid of their case. BA has finally achieved its aim. Neither of their attacks was in my view justified but ultimately they were successful,’ he said.