Back to the Baggage
‘Back to the Baggage’ is a quick look back at the matter of Emerald Supplies Ltd v British Airways  EWHC 2201 (Ch) in which the then Mr Justice Peter Smith referred to the “valiant” submissions of Jon Turner QC, when he put forward an application by British Airways that the judge should recuse himself.
The transcript of this matter can be read in full and is one that I find myself returning to now and again, particularly when in need of a quick dose of soporific material. I find it to be a fruitful distraction from a lugubrious mood that I might find myself in, on the thankfully rare occasions that one of my own insolvency applications do not receive an enthusiastic endorsement from the Court.
The euphemistic submissions by Jon Turner QC appear to be second to none. Some of the exchanges were delightfully measured such that I decided to put them down here so that I can get right to them if the mood so requires:
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 —
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 —
MR TURNER: In that case, let me answer both of those
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
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.
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 —
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,
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,
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.
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,
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 —
13 MR TURNER: My Lord, with respect, that is not, as I say,
14 an inference that can fairly be drawn.
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.
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.
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?
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
14 MR TURNER: Sorry, my Lord?
15 MR JUSTICE PETER SMITH: I have no regret about that
17 MR TURNER: My Lord, I understand.
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
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 —
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
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.
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
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.
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
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.
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.