REUTERS | Tobias Schwarz

Bias and judicial recusal (again)

It has only been a few weeks since I addressed the subject of bias and judicial recusal. However, as it is the holiday season and lost luggage is part and parcel of flying (for some at least), the circumstances of Peter Smith J’s recusal in Emerald Supplies v British Airways is such that I couldn’t resist.

Emerald Supplies v British Airways

As Peter Smith J says as the start of the latest judgment, “this is a very complicated action”. The dispute involves hundreds of claimants located around the world. Those claimants have brought a claim against British Airways plc for losses they allegedly incurred as a result of an illegal cartel in the air freight sector. The claimants have identified 31 airlines that allegedly took part in the cartel. They claim that there were overcharges on air routes that has led to claims in excess of £1 billion.

Peter Smith J had been involved with the case since March 2014 and became the nominated judge in November 2014. In that time, there have been numerous applications and the latest was all about bias and recusal. In short, the judge decided to go. It’s how he arrived at that decision that is interesting.

“The Problem”

The judgment describes the circumstances leading to the recusal as “The Problem”.

It seems the judge went to Florence with his wife in early July. They booked with BA, although it appears a different airline, Vueling Airlines, provided the planes. On their way home, their flight was delayed by two hours. A number of passengers were “bumped off the flight” and the rest (including the judge and his wife) were, eventually, taken to it and boarded. Apparently the pilot said the plane had been moved to another runway and its load had been adjusted because of crosswinds. It was only when the plane arrived at Gatwick that it became apparent that all the luggage had been left in Florence.

I’m not a frequent flyer, but I have experienced lost luggage (and lost bikes). It is frustrating, but it does eventually turn up and get delivered to your house, just like the judge’s luggage did. The description of what happened next suggests the judge and his fellow passengers were frustrated:

“…we hung around in the baggage claim… then we were told to go to Global Recoveries… then we were told for the first time that the entire flight’s luggage had been left behind. No explanation, no representative, nothing. Nothing from BA. Nothing from Vueling who provided the flight.”

The judge appears to have then done what we all might have done. He wrote to BA’s customer services and to Vueling, but felt he wasn’t really getting anywhere. Then he decided to write to BA’s chairman, Mr Williams. He did so in his judicial capacity because he thought it was:

“…essential that his office knew about the proceedings and those conducting the proceedings knew about the complaint.”

I’m not sure how many of us would go that far. Perhaps because of the litigation, he felt he had a way of making BA’s chairman understand how frustrating lost luggage is.

The judge says it wasn’t really an issue over luggage, it was over BA’s conduct. He wanted to know how a plane could leave Florence without luggage aboard, unless that was a deliberate decision (how could the pilot take off and “not know the luggage isn’t there”, or the ground staff “not know that the luggage was not going”?). He even goes so far as to suggest that the luggage was “deliberately bumped off for a more profitable cargo”.

Then the judge wanted to know why no-one would tell him why that decision had been made, or why BA’s legal team had not enquired for him, when he’d asked them to do so. BA’s legal team had suggested it was a private matter that should be kept separate from the cartel litigation.

Perception of bias

The judge appears to acknowledge that his lost luggage dispute raised the potential of a conflict, but rejected BA’s counsel’s suggestion that as soon as he complained to the chairman, that meant there was a perception of bias. He thought it was:

  • Appropriate to declare as part of the complaints procedure who he was and his association with BA. He did not want Vueling to “do things which might cause [him] difficulties in this case”.
  • Necessary to tell BA’s legal team about his lost luggage dispute, rather than waiting for them to discover the dispute and then apply for him to recuse himself, setting aside any orders made during the period he was “apparently biased against BA”.

The judge did not think that a reasonably minded observer would think there was a perception of bias. He did not think a lost luggage dispute was sufficient to warrant recusal. However, somewhat strangely in my view, he also seems to think that BA and its lawyers could have solved the problem simply by coming up with an explanation as to why the luggage was left in Florence. They could have simply told him that:

“…the luggage had to be left behind, we regret, for this, this and this.”

He refers to them adopting a “three wise monkeys approach” and suggests that “they don’t want to know the answers” because:

“…there has been some kind of operation designed to maximise profits at the expense of regular customers.”

Pausing there, one might think the judge’s choice of language is such that we are indeed in the realms of bias, if not against BA itself, then certainly against its legal team. One can readily see why the judge had to go. He may disagree that he should recuse himself (even though he does so), but I think that the reasonably minded observer would think it was the right decision. Perhaps the frustration of losing his luggage for the best part of two weeks spilled over into the hearing and into his judgment writing!

The judge may be correct that a lost luggage dispute should not “lead to the possibility of bias”, but perception is everything in situations of bias. Last time I suggested that I found it very interesting how far parties are prepared to go when running arguments related to bias. Now I see the judge is suggesting it is part of the tools that some litigants can deploy. In adjudication it has been part of the parties’ toolbox for quite some time. I will leave you to decide whether the judge is correct that it is a regrettable feature of litigation (or adjudication).

 

MCMS Ltd Matt Molloy

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