Take the hint, Mr Justice Peter Smith: leave the bench now

Mr Justice Peter Smith “has agreed to continue to refrain from sitting at the present time”, said a spokesman for the judiciary. And little wonder. Behind this laconic announcement lies a judgment that any other judge would interpret as an instruction never to sit again. Three appeal judges, headed by the master of the rolls Lord Dyson, quoted what they described as a “shocking” and “disgraceful” letter written by Smith to a leading barrister. Smith’s letter showed “a deeply worrying and fundamental lack of understanding of the proper role of a judge”, the court of appeal said.

But it wasn’t just the letter. Lord Dyson, sitting with two other appeal judges, granted an appeal against Smith’s decision in a high-profile case because of the way he had tried it. His failure to deliver a proper analysis of the evidence was “unfair” and “not an acceptable way of deciding cases”. The judge had taken a short-cut. A party was entitled to expect better.

When granting an appeal, the appeal court will often rule in favour of the other side without needing the case to be re-argued. Not this time. A re-trial will have to take place before a new judge, at significant expense to all concerned. To prove her case, the claimant will have to give oral evidence all over again.

The only consolation for Smith was that the appeal judges were not persuaded he had been biased against the losing side. They rejected the allegation that “there was an appearance of bias on the part of the judge” against counsel for the defendant and therefore against the defendant himself.

That defendant is Prince Abdul Aziz bin Fahd, a member of the Saudi royal family and son of the late king. He was sued by Janan Harb, who claimed she had been promised by the prince that the king would pay her £12m and give her two homes in Chelsea. That was denied. The case turned on what was said by the parties in 2003. Smith found in Harb’s favour, ruling that there was a binding contract.

However, said the appeal judges: “Harb’s general reliability as a witness was open to serious question.” Smith had failed to carry out a proper evaluation of it. He had “brushed aside” criticisms from the prince’s counsel. He failed to analyse the implications and the probabilities. Smith, said the appeal court, was not entitled to dispense with a proper analysis of the evidence. That, by itself, was enough for the appeal to be allowed. A second ground for overturning Smith’s judgment was that he had not dealt properly with one of the issues: whether the prince had been acting on behalf of the king.

The allegation of apparent bias arose in a curious way. Last July, Smith stood down from hearing a case against British Airways. This was because the judge had himself had a problem with the airline. He was on a holiday flight from Florence which had left without any of the passengers’ luggage. Smith complained to the airline’s chairman. His complaint was similar to the issues he was being asked to try.

In a newspaper column, Lord Pannick QC commented that Smith’s behaviour toward British Airways in that case damaged the reputation of the legal system. Pannick called on the lord chief justice to consider whether action to address Smith’s “injudicious conduct has, like his luggage, been delayed too long”. Smith’s reaction was to ring up the head of Blackstone Chambers, of which Pannick is a leading member. Smith followed this up with a letter, which he had hoped to keep confidential, in which the judge told Blackstone he would no longer support its members who were seeking promotion to become QCs. “It is obvious that Blackstone takes but does not give,” said Smith. And why was that relevant? It was because the prince was represented by two QCs from Blackstone Chambers, and it was only after Smith had read Pannick’s article that his clerk started typing up his ruling in the Harb cases.

The question for Dyson and his fellow appeal judges was therefore whether a fair-minded and informed observer would consider there was a real possibility that Smith had been biased against Blackstone Chambers, its members and their clients. This is what the appeal judges said:

In his letter to the claimant’s solicitors dated 12 February 2016, the judge accepted that he should not have written the letter [to Blackstone]. It is difficult to believe that any judge, still less a high court judge, could have done so. It was a shocking and, we regret to say, disgraceful letter to write. It shows a deeply worrying and fundamental lack of understanding of the proper role of a judge. What makes it worse is that it comes on the heels of the [British Airways] baggage affair. In our view, the comments of Lord Pannick, far from being “outrageous” as the judge said in the letter, were justified. We greatly regret having to criticise a judge in these strong terms, but our duty requires us to do so. But it does not follow from the fact that he acted in this deplorable way that the allegation of apparent bias must succeed.

The judicial conduct investigation office is already investigating Smith’s behaviour in the British Airways case as well as the letter he sent to Blackstone Chambers. A senior judge will advise the lord chief justice.

There is no doubt that Smith is guilty of misjudgment. But he can be sacked only if he is guilty of misconduct. And that would require an address presented to the Queen by both houses of parliament. No high court judge in England and Wales has ever been dismissed in this way. Not so far, anyway.

Any friends Smith may have on the bench will now be advising him to jump before he is pushed. He should take no comfort from the fact that the allegation of apparent bias was not made out. The letter he sent to Blackstone Chambers is as clear an example of misconduct as one could expect to see. It’s not just Pannick who thinks Smith is unsuited to be a judge. I wrote a column in 2007 saying it was time for him to leave the bench. His departure is now long overdue.