Judge Insists His Own Lost Luggage Is A 'Key' Issue In Massive Lawsuit He's Overseeing Against British Airways

from the so-that-happened dept

Tue, Aug 4th 2015 8:23am — Mike Masnick

Apparently, British Airways has been involved for years in a big case in Europe concerning alleged price fixing for air cargo. In a somewhat bizarre turn of events, the judge in the UK who has been dealing with the case for years, Justice Peter Smith, took a short vacation with his wife, in which he flew British Airways. On the return trip, apparently there were some issues with the flight and his luggage. I'll let the judge explain the story himself:

On 30 April, I booked a return ticket to Florence with the first defendant. On 6 July, I flew to Florence, together with my wife, due to return on 10 July. On 10 July, as I have set out in my emails, the flight was delayed for two hours without any explanation. Six people were then summoned to the departure desk and were told that they were bumped off the flight. It turns out that they were the lucky ones, because they got their luggage back then, unlike anybody else in the flight.

The rest of us were then rushed to the aeroplane. Somewhat intriguingly, as I have said in my email, we were sitting right next to the plane while it was refuelling for 20 minutes. It might be a standard practice in Florence, I don't know. It might be a standard practice for the accompanying fire tender to arrive after the refuelling is completed. Anyway, we were then put on the plane and the pilot said that they had been moved to another runway and the load had had to be adjusted because of the crosswinds, and that was it.

We arrived at Gatwick, hung around in the baggage claim, as people do at Gatwick, for 45 minutes and then we were told to go to Global Recoveries, where 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.

I saw the distress that lots of people suffered as a result of that; and I contacted BA customer relations, who simply said: it was a Vueling flight, you will have to take it up with Vueling. That is all they said.

Vueling were no better. In fact, they were worse, for the reasons I have said in argument. Vueling refused to acknowledge my communicating with them until a computerised individual number went onto their system. As I said earlier, it never did. The luggage arrived spontaneously and without warning on Wednesday last week.

Losing your luggage sucks, no doubt about that. Airplane service tends to also suck. Especially when they lose your luggage. But what do you do if you're a judge in a massive case concerning British Airways and its cargo and the airline loses your luggage. You suddenly bring your own issue into the courtroom. Apparently after exhausting his communications with customer service, the judge reached out to the lawyers in the case and the CEO of British Airways to ask what happened to his own luggage. Not surprisingly, BA and its lawyers felt this was somewhat inappropriate. They felt the same about this exchange that happened in court soon after:

Mr Justice Peter Smith: Right, Mr Turner, here is a question for you. What happened to [the] luggage?

Jon Turner: My Lord, the position remains that set out in the letter from Slaughter and May of 15 July, that we are not dealing with that as parties in these proceedings.

PS: I am asking you: what has happened to the luggage?

JT: My Lord, so far as the parties to these proceedings … are concerned, we have said, and we maintain, that we are not getting involved because we trust that that will be dealt with expeditiously, in the ordinary course of events.

PS: In that case, do you want me to order your chief executive to appear before me today?

JT: I do not wish your Lordship to do that; and I would say, if your Lordship will permit me to develop my submissions, that that would be an inappropriate mixture of a personal dispute ...

PS: What is inappropriate is the continued failure of your clients to explain a simple question, namely, what happened to the luggage? It has been two weeks since that happened now....

JT: Our position, my Lord, is that where your Lordship initiates a personal dispute with British Airways…

PS: I didn’t initiate a personal dispute. BA’s associated company retained my luggage. It is not my fault that that happened. I am the victim. I read the whole of your correspondence. The more I read it, I got the impression that BA was trying to portray itself of the victim of this case and being oppressed by wicked Mr Justice Peter Smith. It is just ridiculous...

PS: As far as I am concerned, the key fact in this case is: what happened to the luggage; and your clients know what happened to the luggage and they are not telling me. And your solicitors and you are deliberately not asking...

Not surprisingly, British Airways suggested that perhaps Justice Smith should recuse himself from the case. Now, at one level, you could argue that it's a little weird that a judge who has been overseeing the case for years might get pushed off the case because of actions of British Airways in losing his luggage -- but the judge appears to have gotten somewhat obsessed about using his position in this case to find out what happened to his luggage, which had long since been returned. At one point, the judge tries to argue that the issue is really the same one as in the case, because perhaps his luggage was kept off the flight in order to carry more revenue generating cargo, but that seems like a stretch:

Of course, I do not operate airlines. There might be a logical explanation. I am surprised, if there is a logical explanation, that it hasn't been forthcoming in the last 12 days. I do not believe there is a logical explanation. I believe that the passengers' luggage was deliberately bumped off for a more profitable cargo.

The judge argued that he had little other choice but to identify himself as the judge in this case in reaching out to BA for an explanation, because if he had not made that clear, and BA later found out, then it would have demanded he recuse himself. Either way, he feels he had to make this a major issue -- apparently the "key" issue in this case:

Conversely, I do not, with respect to Mr Turner QC's valiant submissions, accept for one minute that I should not have told his team that I had a dispute. I posed the question to his solicitors, which of course they didn't answer in the correspondence, how they would have reacted if I had carried on and said nothing, and heard the CMC next week, while I was still in dispute with BA over the questions to be answered. I think you only have to say it. The first things they would have done is would have applied, (a) for me to recuse myself and, (b) undoubtedly, to set aside all the orders that I had made, because it was at a time when I was apparently biased against BA.

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.

In the end, though, he did recuse himself, though somewhat angrily:

So the question then is: what should I do? Well, Slaughter and May wrote to me on Monday, requiring me to confirm immediately that I would recuse myself, failing which they would make an urgent application to the Court of Appeal. This litigation is complex enough, without those distractions. It is of no interest to the other parties, who have all had to come here today, to have a proper application made and a decision made. And that has a cost consequence which will probably be irrecoverable, and it is a matter of great regret to my mind that the parties have been inconvenienced for no apparently good or acceptable reason. It would not be appropriate for a recusal application to be acceded to as a result of an exchange of private correspondence.

This would lead to a waste of a lot of judicial resource time in addition to the parties it will also slow progress of the case which I have been attempting to progress. I am afraid BA are not in my view really interested in progressing the matter expeditiously for obvious reasons.

I however cannot allow my presence in the case and its difficulties to distract the parties from this case. And therefore, regretfully, I feel that I have no choice, whatever my feelings about it, but to recuse myself from the case, and that is what my decision is; not for the reasons put forward by BA, but for the reasons that I have said.

He later notes that this "regrettable but necessary decision" was "caused in my view entirely by BA's attitude." That seems like a bit of a stretch. Recognizing how frustrating lost luggage can be, I can certainly understand the temptation to use your position in a case concerning BA cargo to see if you can find out why luggage got lost, but it's hard to see how the judge's own experience should have been brought into the case at all.

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Filed Under: air cargo, court, judge, lost luggage, luggage, peter smith, uk
Companies: british airways

47 Comments

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Josh in CharlotteNC (profile), 4 Aug 2015 @ 7:15am

I'm gonna side with the judge on this one, even though I've never had my luggage lost or been bumped from a flight.

He had a bad experience with a company. It happens. He tried to resolve the issue through normal channels. But this is where it goes off the rails, and he was given abysmally poor customer service and no explanation of what happened. So long as he was using his experience to dig into the problem and was doing so openly.

It all could have been avoided if BA had bothered to treat their ordinary customers with respect and fix the issue and tell them what happened before the judge even needed to identify who he was. Everything after that looks like a cover-up of a massively powerful company trying to protect it's bottom line at the expense of everything else.
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- The Groove Tiger (profile), 4 Aug 2015 @ 8:38am
  
  Re:
  I'm pretty sure if the judge's problem with the airline was legitimately related to the case at hand, it would be a conflict of interests and he would have to recuse himself anyway.
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  - Anonymous Coward, 4 Aug 2015 @ 9:13am
    
    Re: Re:
    This, though, would create a perverse incentive for the parties in a lawsuit to interfere with the judge intentionally, particularly if they wanted to go shopping for a more favorable judge.
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    - The Groove Tiger (profile), 4 Aug 2015 @ 11:33am
      
      Re: Re: Re:
      But it's already how it works. And harassing a judge overseeing your case is probably not a good idea. But if you're the judge and it happened to you randomly, well... don't bring it up in the court?
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- Mason Wheeler (profile), 4 Aug 2015 @ 8:53am
  
  Re:
  Exactly. It's about time someone takes this seriously, and as unfortunate as it is when what it takes is someone in a position of authority being personally inconvenienced enough to take notice, it does appear that that's what it takes.
  
  Heck, this judge is one of the lucky ones. Sometimes the victims end up with far worse problems than simply getting their luggage back a few weeks late.
  
  If someone's personal belongings are held by another party who trusts that they will be returned intact, and that trust is violated, there absolutely does need to be accountability. With great power comes great responsibility.
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  - JoeCool (profile), 4 Aug 2015 @ 11:47am
    
    Re: Re:
    The problem is that USUALLY those with great power use said power to avoid ANY responsibility.
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- nasch (profile), 4 Aug 2015 @ 10:09am
  
  Re:
  The problem is he made it seem as though he was using the court to satisfy his own personal issues. Even if those issues are relevant to the case that looks bad at best.
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  - sorrykb (profile), 4 Aug 2015 @ 10:19am
    
    Re: Re:
    If the judge's issues were relevant to the case, it would be even more inappropriate because he would have a clear conflict of interest.
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- Anonymous Coward, 4 Aug 2015 @ 1:05pm
  
  Re:
  So wait, what you're saying is I must be a judge standing over a case involving a company that's giving me a hard time to get a response from them about what they're giving me a hard time about? Wow, I guess some people are more equal than others.
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TheResidentSkeptic (profile), 4 Aug 2015 @ 8:43am

I want the answer to the real question he asked.
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Spaceman Spiff (profile), 4 Aug 2015 @ 9:08am

Lost luggage
My wife and I flew together some time ago from Chicago to Tucson Arizona. Her luggage arrived with us. Mine - it ended up in Montreal Canada! When does Tucson == Montreal?
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- sorrykb (profile), 4 Aug 2015 @ 10:20am
  
  Re: Lost luggage
  Maybe your luggage wanted to go to Montreal.
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- Anonymous Coward, 4 Aug 2015 @ 12:54pm
  
  Re: Lost luggage
  ...When does Tucson == Montreal?...
  
  Yep, someone f***** up. Tuscon's airport code is TUS while Montreal's codes (2 airports) are YMX & YUL.
  
  My boss years ago flew to Phoenix but his luggage went to Portland. At least that's explainable when you see their codes are PHX & PDX.
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  - JoeCool (profile), 4 Aug 2015 @ 1:57pm
    
    Re: Re: Lost luggage
    I've flown exactly four times, all on business, with three different airlines. In every case, the airline lost at least one of our bags. Weirdly enough, in the one case we flew into NYC, the luggage wound up in Toronto. Seems some airlines like sending your luggage to Canada. :) In the one flight we took to Toronto, the luggage wound up in Chicago. In two cases, the luggage was heavily damaged, like it had been dumped from the cargo door directly to the ground. In no case has the airport ever apologized or made any kind of reparations for the damaged/lost luggage. After the first time, we took out insurance on our luggage, but wound up fighting the insurance companies in court for months to get any kind of payment on the insurance. In short, don't take luggage with you, send it via shipper like FEDEX or UPS. Only take carry on luggage. Period.
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Dooohhh BA, 4 Aug 2015 @ 9:21am

BA shooting themselves in the foot
The follow up judge will be aware of the circumstances and will look at BA with a wider critical eye for the disrespect of a fellow judge. BA pretty much screwed themselves.
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- Anonymous Coward, 4 Aug 2015 @ 12:21pm
  
  Re: BA shooting themselves in the foot
  I have to side with the BA lawyers here, the judge's luggage isn't directly relevant to the case.
  
  Imagine this happening in the 'hot coffee' lawsuit with McDonald's a few years ago. Judge: "Before we get started today, I'd like to ask the defense counsel why the Big Mac I ordered without onions HAD ONIONS ON IT last night!? My wife was displeased and I slept on the couch."
  
  They both have to do with McDonald's service (like the BA case), but are on a vastly different scale.
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  - Anonymous Coward, 4 Aug 2015 @ 6:32pm
    
    Re: Re: BA shooting themselves in the foot
    I don't know. If the Judge's luggage was bumped or delayed so BA's affiliate could load more cargo for revenue purposes, I think maybe he has a point. It could be said, however, that, since this was an affiliate and not BA itself, BA might not have been directly responsible...but still...they both got paid for the flight!
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Stephen May, 4 Aug 2015 @ 9:33am

Entirely Inappropriate
This Judge does what most others do -- only he bungled the power play.

Others (us commoners) can be upset or inconvenienced or outright screwed -- but not one of the Elites, the new age royalty.

He threw his temper tantrum and didn't get immediate boot-licking and so got even madder. The sad fact is he remains a Judge and will be smarter next time.
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crade (profile), 4 Aug 2015 @ 9:38am

Did we ever consider that what happened to his lost luggage experience might actually be related to the case? That is what he keeps claiming in his statements, but I don't see anything in the article to suggest either way.
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- Chronno S. Trigger (profile), 4 Aug 2015 @ 5:53pm
  
  Re:
  If this situation is relevant to the case then he should remove himself as judge and add his name to the lawsuit.
  
  If this situation isn't relevant to the case then he's allowing his emotions to override his judgement and should remove himself from the case.
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Anonymous Coward, 4 Aug 2015 @ 10:13am

I wonder when he'll be charged with wasting the court's time? Like a little person would. Or attempting to pervert the course of justice by using his God-like powers to redirect everyone present to indulging his need to pursue his own petty grievance. His outbursts show him to be thoroughly biased and unable to remain neutral. If his next case involves bank robbery is he going to ask the suspects to prove that they didn't rob his piggy bank when he was 5? He's raised the doubt of bias in any future case.
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Ehud Gavron (profile), 4 Aug 2015 @ 10:13am

The key to the suit.
This suit case is all about the suitcase.
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wereisjessicahyde (profile), 4 Aug 2015 @ 10:15am

I kinda like that Judge, he makes me chuckle. It's so blatantly inappropriate for a courtroom it's bordering on genius.
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dakre (profile), 4 Aug 2015 @ 10:21am

That's the bad thing about law. If the judge has any personal ties to the issue, it's automatically a bias (understandably so). However, in this case, I think it should be fine to bring up his personal experience with the exact same issue. Now it shouldn't become a problem like it has, but what that should do is force BA to show evidence why something like that happened to everyone on that plane (not just the judge).

I wouldn't think it's bias if he was able to bring up his own experience in the same issue on behalf of the other passengers on his flight. He tried, but of course BA wouldn't want that to happen and forced him to recuse himself. I understand that's how the law works, but it is still stupid that they make him a victim and he's forced to recuse himself. The same thing could happen if he didn't say anything, they found out later, then got the entire case thrown out because he just happened to be a victim to the same issue.
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alabaster, 4 Aug 2015 @ 10:23am

Out of options
If I understood it correctly BA could even have done this on purpose.
It simply puts the judge out of options, because once he lost his luggage, there would always have been the possibility to say the decicions he was going to make concerning the case were affected by a personal dispute.
The judge cant deny or change what has happened to him personally and the only option would have been to be open about it, which he did.
Every other way of handling the situation would have given the lawyers of BA the a free card to get rid of the judge.

Even more so, they might have done it on purpose, just to be able to get rid of him at any point of the case.
from the second on he had a personal connection to the case he was working on, they made that possible.

So what to do? Just stay away from the defendants services no matter how widespread?
Dont use your personal comcast line because you are a judge handling a case connected to comcast?
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- David, 4 Aug 2015 @ 10:30am
  
  Re: Out of options
  If I understood it correctly BA could even have done this on purpose.
  
  And that's what the judge apparently was trying to find out.
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Anonymous Coward, 4 Aug 2015 @ 10:59am

Wasn't it a conflict of interest to book a flight on BA in the first place?
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- JoeCool (profile), 4 Aug 2015 @ 11:53am
  
  Re:
  Not unless he wanted to go by boat instead for his vacation. It's not like the US where you often have more than a half dozen competing airlines. In Britain, it's often BA or nothing.
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  - PaulT (profile), 5 Aug 2015 @ 1:16am
    
    Re: Re:
    Erm, no - that's a bunch of crap. Unless you're going to obscure long haul locations, there's many competing airlines, especially on short haul flights. In fact, as stated in the article, the flight this judge was on wasn't even provided by BA. It was a flight provided by the Spanish airline Vueling. He could have booked it through Vueling directly, but he chose to book through BA.
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- Mike, 4 Aug 2015 @ 12:18pm
  
  Re:
  I was looking for this comment. Judge has a case with BA and decides to enter into a customer relationship with the business. bad form.
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  - JoeCool (profile), 4 Aug 2015 @ 2:02pm
    
    Re: Re:
    No, it's more like the judge is overseeing a case against the local electric company, but fails to turn off his electricity while on the case. What is he going to do, use a different electric company? Buy a Honda generator for the length of the case?
    
    In this case, the electric company cut his power, gave him the run around, eventually turned it back on, then ignored any questions about why the power was off.
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    - Anonymous Coward, 4 Aug 2015 @ 2:47pm
      
      Re: Re: Re:
      When does a electric company equal a air line company?
      
      In fact, why is it even necessary to bring in another example that's not related to the issue anyway?
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- Hooter McBus (profile), 4 Aug 2015 @ 7:57pm
  
  Re:
  That's like saying a judge in a case against Google can't use Google.
  
  Doesn't work like that.
  
  If the judge had shares in BA, then that is a different story.
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Whoever, 4 Aug 2015 @ 11:02am

Typical entitled attitude of people with power
1. The flight wasn't operated by BA. Yes, he bought a BA ticket, so BA has some responsibility, but in this case, the flight was operated by Vueling.

2. This is just someone with a little amount of power allowing it to go to his head and displace rational thought. The judge felt entitled in this case because of his position. I hope that the Lord Chief Justice has a word with him about this case, or perhaps he already has and that's why the judge already recused himself.

3. The case was about price fixing for air cargo. His lost luggage is clearly unconnected to the case.
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Uriel-238 (profile), 4 Aug 2015 @ 11:56am

Where's my luggage
So isn't that what we're all asking in our own lives – "Where's my luggage?" I know that's what I've been asking.

If I remember my Agatha Christie correctly, if you piss off enough people in your life, there won't be too many people interested in investigating your murder.
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streetlight (profile), 4 Aug 2015 @ 12:12pm

Pay the lost luggage fee
Josh said:

It all could have been avoided if BA had bothered to treat their ordinary customers with respect and fix the issue and tell them what happened before the judge even needed to identify who he was. Everything after that looks like a cover-up of a massively powerful company trying to protect it's bottom line at the expense of everything else.
-----
I'm guessing that the legal costs to BA or the other carrier are more than what it would take to find out where the luggage went and if they couldn't find it pay the fee associated with the regulations for lost luggage. Lawyers are expensive. So are the wigs worn by English judges if one were in the luggage. BA should just quit while they're ahead and pay up.
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Anonymous Coward, 4 Aug 2015 @ 2:39pm

So he passes the case down to one of his friends who will go even harder on them.
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Pyrosf, 4 Aug 2015 @ 3:13pm

BA or the Highway
First, you can more or less only fly BA, there are a few other options but they are just as bad if not worse.

Even better, if this was a McDonald's case, The Judge wants to "rightfully" know if he was targeted just so they could then try to get rid of the Judge.

Hot Coffee Judge---
Judge: Why was my coffee so hot it caused 2nd degree burns?
Lawyer: We don't know but based on that statement we want you to remove yourself as judge.
Judge: I am only trying to find out why my coffee was so hot I had to go to the Hospital this morning.
Lawyer: This is a personal issue, it does not belong in the courtroom, please remove yourself.

Never mind the Judge was about to give an unfavorable ruling, and the Lawyer had bumped up the temperature of the coffee to cause the problem in the first place.
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- PaulT (profile), 5 Aug 2015 @ 1:37am
  
  Re: BA or the Highway
  "First, you can more or less only fly BA, there are a few other options but they are just as bad if not worse."
  
  Citation? Especially given that this was not a BA provided flight, it was only booked through BA.
  
  I have no idea what you're getting at with the rest of your comment. If the judge was involved in an accident that was directly related to the subject of the lawsuit he's judging, then yes he should be removed for clear conflict of interest. I have no idea how you get from that to the lawyer deliberately causing the accident, either, since it's not only silly but irrelevant (the conflict of interest would be that the burns were caused by a McDonald's coffee, so how was the lawyer involved?).
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Mayson Lancaster (profile), 4 Aug 2015 @ 3:53pm

So why was the luggage bumped?
Tin foil hat explanation says that BA realized the Judge was on the flight, and wanted to get him to recuse himself…
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Groaker (profile), 4 Aug 2015 @ 6:09pm

If you fly, your luggage gets lost a significant percentage of the time. Is this the first time the judge has had his luggage disappear? Perhaps BA is doing a better job than is thought?
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Anonymous, 4 Aug 2015 @ 7:04pm

1. BA wanted him off the case long before this

2. It was all of the passengers' luggage, not just his

3. Losing the luggage is not the relevant factor, he had to know if this was 'just one of those things' ie. It happens, no bias or a deliberate corporate practice which he was therefore victim of and therefore a possible bias. He was trying to clarify if there was a justifiable obligation to recuse himself or not, BA's lawyers played the game well by not answering therefore giving him no choice but to recuse himself, end of - non story
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James (profile), 4 Aug 2015 @ 7:51pm

Confusion
The judge appears to confuse two issues.

He says that he would have been asked to recuse himself had he not informed the lawyers for British Airways of the dispute he had with them. That may be correct.

However, that would only require him to give them notice. Not require them to resolve the dispute for him!
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Coyne Tibbets (profile), 4 Aug 2015 @ 10:21pm

Needs popcorn
I had to stop and get popcorn before finishing this. It makes a fine soap opera.
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btr1701 (profile), 7 Aug 2015 @ 4:05pm

How is this related to tech?
Other than it captured the attention of Mr. Masnick, why is this story on tech blog?
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- Anonymous Coward, 18 Aug 2015 @ 1:59am
  
  Re: How is this related to tech?
  Cell phones were used
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- PaulT (profile), 18 Aug 2015 @ 2:11am
  
  Re: How is this related to tech?
  Because although the name of the blog is Techdirt, it doesn't exclusively deal with issues relating to tech.
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