Case note roundup … English High Court judge goes overboard about his missing luggage … British Airways in the frame … No amount of money too small for a contest of great minds … Immunity of judges and court officers trumps free speech 

He has been obliged to recuse himself from hearing a multi-billion pound case concerning British Airways and allegations of collusion to fix air cargo prices, because he was more interested in the disappearance of his luggage after BA lost his bags on a return flight from a holiday in Florence. 

Counsel for British Airways had previously attempted to have Smith removed from the case, claiming in a letter to the Lord Chancellor that the judge did not have the requisite experience in competition law to hear the matter. That attempt was unsuccessful.

At one hearing Smith asked counsel for BA 33 times about the disappearance of his luggage, which had by then already been safely delivered to his home. 

“Right Mr Turner [BA’s barrister Jon Turner QC], here is a question for you. What happened to the luggage?”

That was just the first of a large number of luggage related questions he peppered during the price fixing case. 

 In his reasons for recusal, Smith goes into finer detail about his missing bags. 

He booked tickets with British Airways and ended up on a plane operated by low-cost carrier Vueling, which failed to load any passengers’ bags on the flight. 

After finding customer support unhelpful His Lordship sent emails to the chairman of British Airways, which he “signed [in his] judicial capacity to alert the chairman to the fact that this was not merely an issue of a disgruntled consumer”.

Smith insists, “This is not an issue over luggage”, rather it’s his concern about “BA’s conduct in dealing with that flight”. 

He further complains that Jon Turner QC … 

“and the team who instruct him have deliberately refused to enquire, to provide me with an answer, praying in aid a desire to separate what they call a private dispute from this judicial dispute.” 

The judge persisted in asking lawyers for British Airways to explain the reason for his lost baggage, and at one point threatened to order BA’s chief executive to appear in court that day to answer his luggage queries. 

Counsel for BA submitted that his private dispute with the airline should be distinct from his role in trying the case.

In his recusal reasons, Smith said: 

“I immediately realised there would be a conflict, potentially, depending on why the luggage did not go the way it should have done … 

It is impossible to keep the two separate. That is not to say that I should ever use the litigation to try and get better treatment or better return of my luggage. I have made it clear all along to the lawyers that I was not concerned about that. I was concerned about why because of the potential similarity between claims in this litigation and the claims in respect of the luggage and the fact that the entirety of the passengers’ luggage was left behind.”

Despite his recusal the judge does “not believe for one minute that the reasonably minded observer … would think that merely because I have raised issues over the non-delivery of my luggage of itself should lead to the possibility of bias”. 

Instead, he blames BA and its solicitors (Slaughter & May), who he claims “simply escalated the problem almost immediately” by not being forthcoming with the whereabouts of his bags in order to “exploit this situation to pressure me into coming off the case”.  

He concluded that he could not “allow my presence in the case and its difficulties to distract the parties”. 

“This is a regrettable but necessary decision caused in my view entirely by BA’s attitude and determination to achieve a result which is nothing to do with the problem.” 

Smith was also the judge who inserted a secret message into his judgment on copyright and plagiarism in the Da Vinci Code case.  

See: Emerald Supplies Ltd v British Airways [2015] EWHC 2201 (Ch) 

More transcript in Daily Mail report  

IT’S gratifying and humbling to see two top flight silks, Bret Walker and Robert Newlinds, taking a case to the NSW appeals court where the amount at stake was $10. 

Walker appeared for an applicant, HP Mercantile, which originally claimed damages of $4.2 million against the estate of Phillip Clements. 

Ashley Black J dismissed the proceedings and it went on appeal, at that stage as of right. 

However, in April this year the parties executed a deed that effectively resolved the appeal, providing that even if successful the applicant would accept $10 in full satisfaction. 

Tom Bathurst CJ said that, “in reality the appeal was not designed to quell any dispute between the parties or determine their rights against each other”. 

While Walker suggested that any judgment would have procedural value in other cases, Bathurst was having none of it. 

“Granting leave to appeal where the proceedings, in reality, are hypothetical between the parties and designed solely to bind, as a matter of precedent persons who are not parties to the litigation and who have no opportunity to be heard, seems to me an entirely inappropriate way for a court to proceed and could itself be productive of substantial injustice.”  

The CJ added that he did not intend to be critical of counsel for either party. 

It’s heartening to know that a litigant and its brief were more concerned about establishing a principle than about the money at stake. 

A determined WA litigant who went after the registrar of WA appeals, Linda Bush, has had his latest legal foray struck out. 

Geoff Barkla claimed $250,000 “plus” in damages for non-economic loss in defamation and misfeasance from Registrar Bush, after she refused to accept documents he wanted to file during appeal proceedings. 

Judge Laurence Levy struck out Barkla’s summons in the District Court, saying it was “vexatious and an abuse of process”.  

In August 2014, Barkla sought leave to appeal the decision of an arbitrator under WA’s Workers’ Compensation and Injury Management Act.  

His application was dismissed in the Dizzo, on the grounds that is was without merit and an abuse of process.

Barkla pressed on, taking the matter to the Court of Appeal,  where Justices David Newnes and Graeme Murphy also rejected his application. 

The High Court was next but, sadly, special leave was refused. 

Barkla then sued the two appeal justices personally, but judicial immunity got in the way.

During his appeal proceedings, Barkla emailed documents to the registrar, including something he described as an “affidavit”.  

He was subsequently advised that the documents could not be filed because they were “neither required nor permitted by the rules and, in any event, serve[d] no purpose”.

Barkla felt this rejection amounted to an implication that he was a liar. He thought Bush was “using trickery to advance and deny [him his] rights under the Australian law”. More specifically, he claimed the registrar had: 

• Caused the tort of defamation by default 
• Caused defamation of character by default 
• Caused libel defamation
• Obstructed justice
• Abused her public office
• Caused harm to the plaintiff’s case. 

Additionally, he claimed: 

• Harm resulting from defamation of character and psychological harm 
• Harm stemming from the denial of his right to refer a legal issues to the Court of Appeal under the Supreme Court (Court of Appeal) Rules 2005. 

Barkla appeared at a special appointment on April 22. Bush was no show, probably because she was never served with any papers.    

Nonetheless, Barkla had an untested defence up his sleeve. Invoking the authority of the Constitution, he submitted that his right to freedom of speech trumped the principle of judicial immunity.  

Judge Levy was not convinced and struck out the summons, explaining:

“Leaving aside the irregularities and the applicant’s failure to serve the respondent, the originating summons is doomed to fail. 

Neither the originating summons nor any of the materials provided by the applicant discloses any reasonable cause of action. There was no evidence before the court that could support any reasonable cause of action. 

The doctrine of judicial immunity prevents actions against not only judges, but also registrars acting in their official capacity.” 

Transcript of earlier proceedings held over the telephone 

See: Barkla v Bush