1 Wednesday, 22 July 2015 2 (11.00 am) 3 (Proceedings delayed) 4 (12.01 pm) 5 MR JUSTICE PETER SMITH: Yes. 6 MR TURNER: May it please the court. I appear today with 7 Mr Patton for British Airways. 8 For the Emerald and Bau Xiang claimants we have 9 Mr Harris, Queens Counsel, Mr Rayment and Ms Blackwood. 10 For the La Gataina claimants, Mr Greene of Edwin Coe 11 appears, on the second row at the end. 12 For the 17 Part 20 airlines who subscribe to the 13 letter that your Lordship, I hope, received yesterday, 14 sent by Hogan Lovells, Mr Jowell appears. 15 Submissions by MR TURNER 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 -- 19 MR JUSTICE PETER SMITH: I asked you to do something this 20 morning. Has it been done? 21 MR TURNER: It has been done, my Lord. 22 MR JUSTICE PETER SMITH: Can you explain to me why it wasn't 23 done? It's alright for your solicitors, they hide 24 behind the anonymity of not even saying who they are. 25 Why did they disregard my request? 1

1 MR TURNER: My Lord, this was perhaps an oversight. May 2 I tell you what was done? 3 Your letter of Friday saying that it was important 4 your personal details should not be communicated to 5 non-lawyers was immediately communicated to all of the 6 parties; and in response to your Lordship's 7 communication to me this morning, Slaughter and May 8 immediately contacted all the parties, asking them to 9 substitute the redacted pages and to ask that any 10 unredacted pages should be immediately replaced and 11 destroyed; and if your Lordship wishes, I have a copy of 12 the email that was sent and I trust that will be done by 13 all parties. 14 MR JUSTICE PETER SMITH: It ignores the fact that unredacted 15 ones are on the court file. 16 MR TURNER: What we have done there is we have provided 17 a redacted copy for the court file, to be substituted. 18 That is with the court. 19 My Lord, the substantive issue before you is the 20 delicate one of apparent bias; and I would add that this 21 extends to standing down from the CMC that remains 22 currently listed for next week, although we do 23 understand that this will have to be relisted for the 24 first convenient date in the Michaelmas term. 25 MR JUSTICE PETER SMITH: What is active in the CMC next 2

1 week? 2 MR TURNER: There are a series of applications that have 3 been indicated on the claimants' side by application 4 notice; and on BA's side, by application notice, and the 5 parties -- 6 MR JUSTICE PETER SMITH: I have got their application of 7 20 July, which seeks an order for provision of further 8 information and a stay for mediation between 1 September 9 and 31 October. 10 MR TURNER: Yes. You should also have an application notice 11 by British Airways. 12 MR JUSTICE PETER SMITH: I have the present one. What else 13 is there? 14 MR TURNER: There is one relating to that CMC that was 15 lodged -- it would have been on the same day; the date 16 by which the parties agreed the application notices 17 would be filed. 18 MR JUSTICE PETER SMITH: What is that for? 19 MR TURNER: That was for a series of orders relating to 20 disclosure, correction of matters in relation to the 21 Scott schedule, and associated orders. 22 MR JUSTICE PETER SMITH: That hasn't arrived yet. 23 I have a letter from Hausfeld, which I think refers 24 to that application. Have you seen that? 25 MR TURNER: I am not sure which letter your Lordship means. 3

1 MR JUSTICE PETER SMITH: The letter of 22 July, written to 2 me, asking that an application, which I have not seen 3 that BA made in the Bau Xiang proceedings be listed 4 together with the forthcoming case management conference 5 listed for three days; and they suggest it should be 6 adjourned off to the hearing of the strikeout. 7 MR TURNER: Yes. I am grateful to your Lordship for 8 reminding me of that. 9 As well as the Emerald claimants' applications, 10 there is also an application by BA in relation to the 11 Bau Xiang matter, where, your Lordship may recall, that 12 is the Chinese claimants; there are 65,000 of them. 13 MR JUSTICE PETER SMITH: Yes. That's the strikeout because 14 of lack of authority? 15 MR TURNER: That is the strikeout for lack of authorities, 16 but what they have done is they've said already that 17 60,000 of the 65,000 claimants do not, as far as they 18 perceive it now, appear to have carried air cargo during 19 the period in question. On that basis, we say that it 20 is right that those claimants should be removed from 21 their claim. That was one of the matters due to be 22 heard next week. 23 MR JUSTICE PETER SMITH: It is your client's case that 24 I can't even hear these relatively modest administrative 25 applications; is that right? 4

1 MR TURNER: We say that that is an important application; 2 but that in any event, in the circumstances that have 3 arisen, it is better to be comprehensive, that the 4 recusal application therefore applies to these matters. 5 MR JUSTICE PETER SMITH: Right, Mr Turner, here is 6 a question for you. What happened to luggage? 7 MR TURNER: My Lord, the position remains that set out in 8 the letter from Slaughter and May of 15 July, that we 9 are not dealing with that as parties in these 10 proceedings. 11 MR JUSTICE PETER SMITH: I am asking you: what has happened 12 to the luggage? 13 MR TURNER: My Lord, so far as the parties to these 14 proceedings, including Slaughter and May as the 15 representative of British Airways for these proceedings, 16 are concerned, we have said, and we maintain, that we 17 are not getting involved because we trust that that will 18 be dealt with expeditiously, in the ordinary course of 19 events. 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 -- 5

1 MR JUSTICE PETER SMITH: What is inappropriate is the 2 continued failure of your clients to explain a simple 3 question, namely, what happened to the luggage? It has 4 been two weeks since that happened now. Or are you 5 saying that if I had a piece of luggage that was just 6 lost, that would lead me to recuse myself from the case? 7 MR TURNER: I am not saying that, my Lord. If I may, I will 8 develop the submissions on this because -- 9 MR JUSTICE PETER SMITH: No, I want an answer to my 10 question. If you are not going to -- 11 MR TURNER: In that case, let me answer both of those 12 questions. 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 18 luggage. 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. 23 MR JUSTICE PETER SMITH: If the dispute over the luggage had 24 gone to litigation, you are not saying I shouldn't have 25 told the parties in this litigation of that dispute, are 6

1 you? I just find that an impossible submission. I just 2 wonder what thunderbolts would have come in my direction 3 if your solicitors had found out that I was in a dispute 4 with BA and not told them, and BA didn't know of my 5 connection with this litigation and I commenced 6 proceedings against BA, and then I suddenly tell your 7 lawyers that: oh, by the way, I am suing your clients. 8 Are you seriously suggesting there isn't a necessary 9 linkage that has got to be ventilated? 10 MR TURNER: Our position, my Lord, is that where your 11 Lordship initiates a personal dispute with 12 British Airways -- 13 MR JUSTICE PETER SMITH: I didn't initiate a personal 14 dispute. BA's associated company retained my luggage. 15 It is not my fault that that happened. I am the victim. 16 I read the whole of your correspondence. The more 17 I read it, I got the impression that BA was trying to 18 portray itself of the victim of this case and being 19 oppressed by wicked Mr Justice Peter Smith. It is just 20 ridiculous. 21 The reason I called you and Mr Harris and your 22 lawyers in was that I wanted to head off a situation 23 whereby it would escalate out of control and lead to the 24 present application. 25 MR TURNER: My Lord, I do understand that and this is not 7

1 a criticism of your Lordship's motivations in any way. 2 May I answer the question that you have just put to me? 3 In circumstances where a dispute arises between the 4 judge presiding in a case and one of the litigants, the 5 right course to take, as indicated in our letter of 6 16 July, is for your Lordship to notify the parties to 7 the litigation, and to speak to them about it at the 8 earliest opportunity. 9 MR JUSTICE PETER SMITH: I did. I could not have spoken to 10 you earlier unless you wanted me to phone you at home on 11 a Saturday or a Sunday. You were contacted the first 12 thing on Monday morning. 13 MR TURNER: But this was after having written to the chief 14 executive in the context of the personal dispute, in 15 your email of 13 July, making the connection between the 16 two disputes; the professional and the personal. It is 17 that which is objectionable in that connection. We do 18 understand that if a personal dispute arises it is 19 necessary to bring it to the attention of the parties. 20 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 -- 25 MR JUSTICE PETER SMITH: It is personal. Your clients have 8

1 personalised this. 2 MR TURNER: My Lord, with respect, no, and they seek not to 3 do so. Where a personal dispute arises for a legal 4 representative or a judge involved in litigation, the 5 right thing to do is not to append one's legal title to 6 the correspondence. 7 MR JUSTICE PETER SMITH: If I put Sir Peter Smith, I always 8 get letters "Dear Sir Smith" which doesn't actually give 9 confidence in the other party. There is absolutely 10 nothing wrong with a party finishing his letter off with 11 the title which he has. That is the answer to that. 12 But I come back to my first question. What has 13 happened to the luggage? You don't know, obviously. Do 14 your solicitors know? 15 MR TURNER: Our solicitors do not know, because of the 16 separation that I have told your Lordship we are 17 implementing. 18 MR JUSTICE PETER SMITH: What I will tell do is I will rise 19 until 12.45 and you can find out. 20 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, 23 then? 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, 9

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. 4 MR JUSTICE PETER SMITH: No, I am not going to do that, 5 Mr Turner. 6 As far as I am concerned, the key fact in this case 7 is: what happened to the luggage; and your clients know 8 what happened to the luggage and they are not telling 9 me. And your solicitors and you are deliberately not 10 asking. Your reasons might be as you say, but what is 11 being withheld from me is what is the key point in this 12 issue, by the people who seek to recuse me from the 13 case. 14 This is very serious, not merely for me, but for all 15 the parties involved in this litigation. I accept, of 16 course, that it is not a matter of discretion, but I am 17 entitled to be satisfied that there is a genuine case 18 that a reasonable third party would think there is 19 a possibility of bias, which is what your test is. 20 MR TURNER: Yes, yes. 21 MR JUSTICE PETER SMITH: Merely because an applicant says 22 so, does not make it so. I am afraid in this modern, 23 cynical world, applications for recusal, in many cases 24 are regarded by people as a legitimate tool to resort to 25 if they think a case is going badly for them. 10

1 Now, I am entitled, therefore, to know, because if 2 there is -- and I have always made this position clear; 3 if there is a perfectly understandable operational 4 reason as to why the whole of the flights' luggage was 5 left behind in Florence -- note, the whole of the 6 flight, not just mine, the whole of the flights' luggage 7 was left behind -- if it was for perfectly reasonable 8 operational reasons, then I will accept that. That has 9 been my stance ever since I contacted the chairman. 10 I contacted the chairman because the BA helpline is 11 misdescribed. Because when I contacted them, they said, 12 "It is nothing to do with us, it is down to Vueling", 13 despite the fact that I booked my flight with BA and BA 14 took my money. That appears to be irrelevant. 15 The Vueling helpline was even worse, because 16 although we were all given a personalised lost luggage 17 number, it never got onto their system. So when you are 18 on the Vueling airline helpline, they said, "Come back 19 to us when your luggage goes on our computer system". 20 They couldn't even tell me where the luggage was till 21 it, without warning, spontaneously arrived at my house 22 last Thursday. 23 In those circumstances, I went to the BA website and 24 the BA website says the chairman is anxious to have 25 comments from customers, and there is his email address, 11

1 so I sent him an email. 2 That is reinforced by an article which I referred to 3 in the correspondence. Apparently he likes reading 4 customers' emails. It doesn't appear to be necessarily 5 he does anything about it, but he obviously likes 6 reading them over his breakfast. 7 So your clients must know now, nearly two weeks 8 after the event, what happened to the luggage. 9 MR TURNER: My Lord -- 10 MR JUSTICE PETER SMITH: They can either tell me, and I will 11 give you an opportunity to take instructions again about 12 whether or not you are going to do it; and I will come 13 back at 12.30 and you can tell me. 14 I shouldn't make any preparations for lunch because 15 you are going to be sitting through. You can reconsider 16 your position and I will decide what I am going to do. 17 MR TURNER: My Lord, I do understand that. May I make two 18 observations before you rise? 19 The first is: it would be best, in my submission, 20 and right, if I can make the application on apparent 21 bias now. I entirely accept, and your Lordship is 22 correct, that you are entitled to test the applicant's 23 basis for saying that there is apparent bias. 24 MR JUSTICE PETER SMITH: I don't agree, Mr Turner, because 25 if your client comes back and says, "there is no 12

1 operating reason that we can give, and in fact we saw 2 an opportunity to make a profit, which we took", then 3 I am afraid I will have to come out the case. I have 4 accepted that always. 5 Because if that is what your client has done, 6 although I have got my luggage back, as I said to you 7 when you came to see me, that wasn't my concern. 8 MR TURNER: Our submission is that the problem of apparent 9 bias arises regardless of the answer to that particular 10 question. 11 MR JUSTICE PETER SMITH: I don't agree with you. 12 MR TURNER: May I perhaps explain why that is our position? 13 MR JUSTICE PETER SMITH: No. I want an answer to my 14 question first. 15 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, 13

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 -- 5 MR JUSTICE PETER SMITH: I hope so, Mr Turner. I sincerely 6 hope so. I do not wish to make findings like that. But 7 if you drive me to a position whereby you, in my view, 8 have unreasonably refused to provide a thing which would 9 sever the Gordian knot, then it is possible I might draw 10 an inference. Judges regularly draw inferences. 11 It is up to you. Your client knows what happened to 12 the luggage. 13 MR TURNER: My Lord, with respect, that is not, as I say, 14 an inference that can fairly be drawn. 15 MR JUSTICE PETER SMITH: If your client does not know, if 16 you are telling me, on instructions, that BA do not know 17 what happened to the luggage, nearly two weeks after it 18 was not put on the flight, I would require some 19 convincing as to that. 20 MR TURNER: My instructions are to have kept the matters 21 separate. 22 MR JUSTICE PETER SMITH: I know. That is why when you say 23 BA don't know, you are meaning the people in the BA case 24 company who are instructing you, and they are adopting 25 a three wise monkeys approach. But BA as a group, as 14

1 a company in a group, clearly know what happened to the 2 luggage, because, as I said in my original email, they 3 cannot have accidentally left the whole of the flight's 4 luggage off the plane, can they? I mean, I am 5 intrigued. It might be for some reason they only had 6 3 gallons of fuel in the plane, it would run out unless 7 they took everything off, which is a bit difficult 8 because the plane was actually being refueled when we 9 got there. But equally, it is impossible to believe 10 that the pilot, who has to sign the documentation as to 11 what is the weight and composition of the weight in the 12 plane, did not know that his hold was empty; and it is 13 equally impossible for the ground staff not to know that 14 the luggage was not there. 15 These are things which, I accept, I am struggling to 16 find a rational explanation for. But then I don't 17 operate airlines. I don't know what goes on. But I do 18 know this, Mr Turner: it is clearly within the knowledge 19 of your client to explain. 20 MR TURNER: My Lord, you know, of course, that this was not 21 a BA aeroplane. This was another operator. 22 MR JUSTICE PETER SMITH: In the same group. 23 MR TURNER: This is a Spanish low cost operator. 24 MR JUSTICE PETER SMITH: That itself is an interesting 25 story, because I bought my ticket with BA and I was 15

1 given a BA flight number, until the day before I signed 2 in, when it suddenly got changed to a Vueling number. 3 MR TURNER: There are what is known in the industry 4 my Lord -- I know this has not been debated -- as code 5 sharing arrangements, that your Lordship may have heard 6 used -- 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. 14 MR JUSTICE PETER SMITH: I didn't contract with Vueling. 15 I contracted with BA. I signed up with BA. BA took my 16 money. BA had the responsibility for my luggage. In 17 fact, BA had the responsibility for me being able to get 18 onto the flight. Your code sharing now explains to me 19 why the plane was possibly overloaded or underloaded, 20 because the people might have code shared more than 21 there are(?). But my contract was with BA and, frankly, 22 for BA to tell me, their "customer help (sic) line", was 23 that it was nothing to do with them was, shall I say, 24 economic with the actualit. 25 MR TURNER: My Lord, I do not know that British Airways have 16

1 said that it is nothing to do with them. As I say, my 2 understanding is that this is being investigated as 3 expeditiously as possible in the ordinary course of 4 events. All I am saying is that, as your Lordship 5 rightly says, BA, in the capacity of this litigation, is 6 not investigating in parallel your Lordship's personal 7 dispute. 8 MR JUSTICE PETER SMITH: That was a decision that your 9 solicitors and clients, and possibly you, unilaterally 10 made. I think it is the wrong decision, and I don't see 11 how you can uncouple the two events. We can develop 12 that later. 13 In the meantime, 20 to 1. I will rise and you can 14 consider your position and see where you go. 15 I have a part heard trial which this is trespassing 16 on at the moment; and they will come back at 2 o'clock. 17 If we haven't finished by 2 o'clock, we shall carry on 18 after 4 o'clock. 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. 17

1 MR JUSTICE PETER SMITH: Before I rise, I apprehend, for 2 reasons that I suspect are not connected with this 3 application, that nobody has any enthusiasm for the CMC 4 next week. Is that right? 5 MR TURNER: All parties agree, but perhaps for different 6 reasons, that the CMC next week should be adjourned in 7 these circumstances. 8 MR JUSTICE PETER SMITH: So if I found another judge, that 9 would be happy for everyone, would it? 10 MR TURNER: I can't speak for other parties. BA would deal 11 with that. 12 MR JUSTICE PETER SMITH: The next judge might not be on your 13 solicitors' acceptable judge list. 14 MR TURNER: My Lord, our solicitors do not have 15 an acceptable judge list. 16 MR JUSTICE PETER SMITH: What the phrase I'm looking for? 17 I hear what you say, Mr Turner. 18 MR TURNER: My Lord, that is the position. 19 MR JUSTICE PETER SMITH: Mm-hm. I hear what you say. 20 Does anybody want to say anything else at this 21 stage? 22 MR HARRIS: No, my Lord. 23 MR JUSTICE PETER SMITH: I will give you until 12.40 to 24 reconsider your position and then I will decide what to 25 do if you don't. 18

1 MR TURNER: My Lord, understood. 2 (12.25 pm) 3 (A short break) 4 (12.40 pm) 5 MR JUSTICE PETER SMITH: Yes? 6 MR TURNER: My Lord, we have contacted our instructing 7 solicitor at British Airways. She has no information 8 and does not know what has happened to your luggage. 9 She maintains the position that this will be dealt with 10 in the ordinary course of events expeditiously, and 11 isn't prepared to engage in the investigation of a 12 personal issue through this litigation. 13 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? 19 MR TURNER: That the apparent bias issue arises irrespective 20 of the answer that you get to what happened to the 21 luggage on the flight; and that is the position that 22 I would wish to develop submissions on first before your 23 Lordship. 24 MR JUSTICE PETER SMITH: You have half an hour for your 25 submissions in total. 19

1 MR TURNER: I am obliged, my Lord. 2 We say that the position of apparent bias arises 3 now. It arises from the content of the emails that you 4 sent to the chairman on 11 and 13 July; it arises from 5 your approach to the problem subsequently, including the 6 letter on 17 July, and indeed the remarks which are 7 along those lines made in this hearing. 8 The grounds are set out in our skeleton argument at 9 paragraphs 11 to 13. In view of the indication from 10 your Lordship, I will only briefly highlight the key 11 propositions of law relevant to our application and then 12 why the circumstances of this case call, we say, for 13 recusal. 14 In answer to the points that your Lordship has made, 15 I will explain four things. 16 First, this is not a trivial baggage dispute. 17 Second, and I think your Lordship has acknowledged 18 this so I need spend no time on it, this is not the sort 19 of matter where one takes into account, in the balancing 20 exercise, the cost, delay and inconvenience of recusal. 21 Third, that the problem of apparent bias does arise 22 now. It is not something that potentially arises only 23 later, depending on what BA answers to your questions. 24 Fourth, this is not a matter where the explanations 25 that your Lordship has given, concerning why you wrote 20

1 to the chairman, resolve the problem. 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 13 decision. 14 MR TURNER: Sorry, my Lord? 15 MR JUSTICE PETER SMITH: I have no regret about that 16 decision. 17 MR TURNER: My Lord, I understand. 18 MR JUSTICE PETER SMITH: You don't, because you don't know 19 what happened in the case. 20 I will tell you what happened in the case, because 21 this demonstrates the problems you have. 22 The Court of Appeal, having considered the 23 application for me to be removed for 30 minutes and 24 decided it, having been shown only half the transcripts 25 of the hearing it took before me, and in particular not 21

1 being shown that I had suggested a particular way in 2 which the applicant's case could be resolved, removed 3 me. 4 The result was that the party who were running up 5 costs remained in place, and the application was then 6 renewed in front of another judge and took eight days, 7 cost millions of pounds, with the result that they got 8 precisely what I had offered them on day 1; with the 9 result that they were ordered to pay everybody's costs 10 on an indemnity basis, and it led to this observation in 11 the Court of Appeal, on their appeal again. 12 "First, the history of this application, the costs 13 incurred in connection with it, the court time, this 14 whole application having taken eight days plus four days 15 on costs, not to mention interim hearings on this 16 appeal, and the duration of the application which 17 started over 15 months ago, were all unquestionably 18 inappropriate and appears to be little short of 19 scandalous." 20 [2011] EWCA Civ 786, paragraph 42. 21 None of that would have happened, of course, had 22 they acceded to the proposal that I made in the first 23 half hour of the case instead of going off the 24 Court of Appeal. So I have no regrets about Millais. 25 I have plenty of regrets about the way in which the 22

1 Court of Appeal went about their decision, but, like you 2 I suspect, we are no longer surprised by what happens in 3 the Court of Appeal. 4 I understand the principle. I also wish to note 5 that the Court of Appeal has consistently refused to 6 give judges any kind of guidance as to how these kinds 7 of cases can be dealt with. I was accused of going into 8 the forum, but given that case, and indeed given this 9 case, if this issue is going to be resolved, it can only 10 be resolved between you, on behalf of your clients, and 11 me. I can't expect anybody else to become involved in 12 it, (a) because they know nothing about it, (b) it is 13 nothing to do with them. 14 The Court of Appeal has not yet come up with 15 a procedure. Had I acceded to what happened in the 16 Millais case, they believe that I should have recused 17 myself on the basis of a letter that was sent to me at 18 4.30 the day before a three-day case was due to start, 19 I having been involved in reading it for three days, the 20 contents of which were not shown to the other parties, 21 who knew nothing about it. That the Court of Appeal 22 considered acceptable. 23 Your clients' solicitors at least brought, I think, 24 Hausfeld into the correspondence. But equally, these 25 things are so important they cannot be dealt with by 23

1 letters. That is why I did not respond to your 2 solicitors' requirement for me to recuse myself by their 3 letter delivered on Monday. It cannot be done. I would 4 like it not to be done. I don't wish my private affairs 5 to be ventilated publicly. It comes with the job 6 description. 7 So I don't regret Millais one jot. 8 MR TURNER: My Lord -- 9 MR JUSTICE PETER SMITH: We still have a difficult procedure 10 where, in effect, I have to argue my own case and then 11 adjudicate on it. I don't know any other way it can be 12 dealt with. If you can think of something, I am open to 13 suggestions. 14 MR TURNER: My Lord, two observations. 15 The first is I make no comment about the facts of 16 that case or whether it ended unhappily or not. I refer 17 it to only for the legal propositions in law. 18 Secondly, so far as the personal dispute issue is 19 concerned and how one does deal with something that 20 happens of this nature, our position is your Lordship 21 should not make a linkage, but bring the parties in the 22 litigation before you to explain that a personal dispute 23 has arisen. 24 MR JUSTICE PETER SMITH: I did that. I did that -- 25 MR TURNER: Yes, but only after contacting the chief 24

1 executive in the context of the personal dispute and 2 pointing out to him that he may, or suggesting that he 3 should contact immediately his lawyers in the Emerald 4 litigation. That was the problem. 5 My Lord, if you have the Lees Millais case in front 6 of you, I will very briefly mention the propositions 7 that we say are relied on and relevant. 8 Paragraph 4, you will be well aware of the basic 9 statement of principle concerning apparent bias; the 10 fair minded and informed observer test from Porter v 11 Magill. 12 Paragraph 5, it is Lord Steyn, referring to the 13 Lawal case, and he refers to the need for public 14 confidence and says that the test has, at its core, the 15 public perception of the possibility of unconscious bias 16 being the key. 17 So it is not a motivation issue. It is a perception 18 issue, and that can extend also to unconscious bias. 19 I agree with your Lordship: it is a very difficult 20 matter for a judge who is the subject of that 21 application to deal with themselves, but that is the 22 procedure that is followed. 23 Paragraph 6 is the point that your Lordship has 24 already commented upon, quoting AWG at 6(i), that the 25 disqualification isn't discretionary. 25

1 And at (v), under 6, the question of animosity 2 expressed between a judge and a litigant gives rise to 3 a real danger of bias; and that is an example of how 4 there may be grounds for doubting the ability of a judge 5 to ignore extraneous considerations and prejudices. 6 Paragraph 7 quotes Locabail, and you see there the 7 proposition that although the judge may give 8 an explanation of their position, that is not decisive. 9 The court may still recognise the possibility of doubt 10 about it and the likelihood of public scepticism. 11 Finally, paragraphs 31 and 41. 12 Paragraph 31, that animosity showing apparent bias 13 can be discerned from the content and tone of the 14 correspondence with the judge. 15 Paragraph 41, summing up the test in a different 16 way; a judge must not become so personally involved in 17 the litigation that the necessary judicial objectivity 18 is no longer guaranteed. And again, that is a matter of 19 perception which we rely on, not a matter of necessary 20 reality. 21 As to submissions, I say briefly then as follows. 22 First, that this personal dispute isn't about the 23 delayed delivery of two pieces of your Lordship's 24 luggage. That was suggested in paragraph 7 of your 25 Friday letter. If your Lordship wants to open up that 26

1 letter -- if you have the other bundle, the hearing 2 bundle, and put away the authorities bundle. In tab 2, 3 if you go to page 36, which is within your letter of 4 Friday. If you go to the end of paragraph 7, you said: 5 "If you do not object to that [which was the earlier 6 point about Mr Hollander] I cannot see that a delay in 7 delivery of two pieces of luggage of itself can 8 seriously be put forward as an argument for recusal." 9 Your Lordship fairly said a little earlier that the 10 issues relate to the reasons for the non-carriage -- 11 MR JUSTICE PETER SMITH: I said that to you on Monday. 12 I made it quite clear on Monday, didn't I, that the 13 issue was not over the delivery of the luggage, and that 14 I was not concerned about the delivery of the luggage? 15 MR TURNER: Yes. 16 MR JUSTICE PETER SMITH: I made that clear, and that 17 sentence actually repeats what I say, in the sense that 18 I reject any suggestion that an argument over 19 non-delivery of two pieces of luggage between myself and 20 your clients could ever constitute the basis for me 21 having to recuse myself, and I think you accepted that 22 earlier. 23 MR TURNER: Yes, my Lord, and we say therefore that -- 24 MR JUSTICE PETER SMITH: We are ad item. 25 MR TURNER: Yes, we are ad idem that therefore this is not 27

1 what the dispute really concerns. The issues relate to 2 the reasons why the whole flight's luggage were not 3 carried, and associated matters. 4 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 28

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 -- 9 MR JUSTICE PETER SMITH: You only have to speculate because 10 your clients won't tell you, or you won't ask your 11 clients. 12 MR TURNER: My Lord, with respect -- 13 MR JUSTICE PETER SMITH: They have the answer. They know 14 the answer. 15 MR TURNER: Your Lordship says that, but there is 16 a complaint with BA which is or should be being dealt 17 with expeditiously. There certainly, and I can say this 18 on instructions -- 19 MR JUSTICE PETER SMITH: What is the timetable for 20 expedition? 21 MR TURNER: My Lord, I am not aware of that. What I can 22 say, on instruction, is that there is absolutely no 23 basis for any thought that we are slowing this down in 24 a tactical way or seeking to withhold from your 25 Lordship -- 29

1 MR JUSTICE PETER SMITH: I don't believe I'll ever get 2 an answer. 3 MR TURNER: My Lord, that is said on instructions. 4 Returning to the email, the "deliberate decision" 5 not to carry the luggage. At the bottom of the page, 6 paragraph 2, the perpetuation of a "deliberate deception 7 that everything was proceeding as normal" by the staff. 8 MR JUSTICE PETER SMITH: Once again, the pilot has to know 9 the weight of the plane. He has to approve the 10 calculations for fuel. It is impossible for the pilot 11 to take off without knowing that the passengers' luggage 12 is being left behind. I just can't see how else he can 13 operate. 14 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 30

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. 9 If we turn over the page, at number 3: 10 "... cannot believe the plane travelled with 11 an empty hold." 12 Again a conviction as to that. But then it has been 13 suggested by you that Vueling may have loaded the hold 14 with a lucrative commercial freight to pursue profit "at 15 the expense of passengers who could go to hell at the 16 expense of profits". 17 Your Lordship knows that subsequently, 18 an arrangement of that kind between BA and Vueling, if 19 it were to exist, could be described, you said, as 20 a conspiracy. 21 These are matters that are strong and proactively 22 put forward, rather than open questions as -- 23 MR JUSTICE PETER SMITH: No, I don't agree with you, but 24 there we are. 25 I asked the questions because I was very concerned 31

1 that if there was something that looked like the present 2 case that I had been a victim of, it was inevitable that 3 I would have to come out of the case. We are chiming 4 from the same hymn sheet in that regard. That has been 5 my concern to find out what happened, because I fully 6 accept that if I had been the victim of a deliberate 7 leaving of my luggage, with a desire for making profit, 8 that would inevitably lead to my being unable to carry 9 on with the case. Conversely, if there was a perfectly 10 acceptable operational reason as to why all of our 11 luggage was left behind and why 40 seats were empty, 12 then there is nothing more to be said. 13 MR TURNER: Yes, and my first point, my Lord, is that the 14 way that you put this to the chairman showed 15 a conviction on certain -- 16 MR JUSTICE PETER SMITH: I don't agree with you, Mr Turner. 17 You have a certain style, I have a certain style. 18 I find that my style does not lead to any 19 misunderstandings and people know precisely what I am 20 after. Other people write in euphemisms. Other people 21 write in a way deliberately to obfuscate. My mind is 22 open. All I want is an explanation, but I am not 23 getting an explanation. 24 MR TURNER: Except, my Lord, taking at face value, of 25 course, that your Lordship has stated your mind openly 32

1 and straightforwardly -- 2 MR JUSTICE PETER SMITH: Like anything. Like anything. 3 I find difficult, as a lay person who tends to operate 4 on logical bases, any logical basis why all the luggage 5 would be left behind. 6 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 33

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. 7 MR JUSTICE PETER SMITH: I know full well, Mr Turner, 8 because your solicitors threatened me with that on 9 Monday, that unless I recuse myself today, you are to go 10 to the Court of Appeal. You are not going to accept 11 this. I know that. 12 That is the major factor in today's exercise, as far 13 as I am concerned. I am not going to allow my position 14 to become the issue in this case. And I fear that your 15 clients' attitude this week has driven me out of the 16 case for no justified reason. Because I am not going to 17 stay in the case, because of their attitude. 18 MR TURNER: My Lord, these submissions are made in good 19 faith and your Lordship I hope will accept them, on 20 reconsideration and reflection of this hearing. 21 MR JUSTICE PETER SMITH: I will not accept them. I of 22 course accept that you are making the submissions in 23 good faith. 24 MR TURNER: My Lord, may I press ahead -- 25 MR JUSTICE PETER SMITH: But I don't extend it beyond you. 34

1 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 4 outcome? 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. 16 MR JUSTICE PETER SMITH: The plane departed without our 17 luggage; and nobody told us. I regard that as 18 a deception, unless I am told otherwise. What else 19 would you describe it as? 20 The ground staff rushed us onto the plane, or tried 21 to rush us onto the plane while it was being refueled 22 and, in the traditional Italian way, the fire engine 23 arrived after the refuelling had been completed, and 24 nobody mentioned the fact that: oh by the way, chaps and 25 chapesses, your luggage is not coming with you. It 35

1 didn't affect me greatly, but what was scandalous about 2 it was the indifference shown to other passengers who 3 were on world tours with young children, who had only 4 their clothes to stand in when they arrived at Gatwick 5 two hours late, kept waiting for 45 minutes. Nobody was 6 there from BA or Vueling. We got a tannoy which 7 said: oh, go to the Global Recoveries. We all knew what 8 was going to happen next. There we were told: your 9 luggage has been left behind in Florence. 10 These were people who had no changes of clothes. 11 Some of them were going on onward flights with all their 12 keys and medicines in the hold. I had medicines. And 13 when I spoke to the wonderful Vueling customer care 14 thing, and I pointed out that my medicines were also in 15 my suitcase because they were open and couldn't be 16 carried in my hand luggage, she said: that's up to you. 17 MR TURNER: Yes. 18 My Lord, I am not in a position to know, and your 19 Lordship -- 20 MR JUSTICE PETER SMITH: I will speed you up. I am going to 21 recuse myself, Mr Turner. Your clients have left me 22 with no alternative, as far as I can see. That does not 23 mean I accept the premise for your application. Your 24 clients can also rest assured that this complaint will 25 not end here. 36

1 MR TURNER: My Lord, I am grateful for that decision. My 2 I ask, in view of that, whether you wish me to continue? 3 Because if that is your Lordship's decision, it may be 4 efficient to -- 5 MR JUSTICE PETER SMITH: I am not going to accept your 6 submissions. I do not accept that any credible basis 7 has been set out that requires me to recuse myself. 8 I do, however, form the view that this has been taken 9 with an opportunistic approach to carry on the design 10 that people on your side have been doing in this case, 11 to try and get me out if they can. 12 MR TURNER: My Lord, that we very strongly and with 13 conviction contest. 14 MR JUSTICE PETER SMITH: You can do it however you like. 15 You can even stand on the rooftops and shout it from 16 there, but I am afraid I don't accept that, especially 17 when we look back historically, when you wrote to the 18 Chancellor and, in effect, suggested that any judge 19 should be appointed to do this case apart from me. 20 MR TURNER: My Lord, in relation to that, I hope you will 21 have seen the indication in our skeleton that that is 22 not a fair summary of what the submission was. 23 MR JUSTICE PETER SMITH: I don't accept that either. 24 Anyway, you can make your submissions. I will hear what 25 other people say. If people are going to fight to keep 37

1 me on -- and they are not. I will recuse myself today. 2 I had hoped that there would be common sense and that 3 the administrative issues in the CMC could be resolved, 4 and then I could have recused myself after that, so that 5 the case is not further delayed. But you are telling me 6 that your clients won't even agree that. 7 MR TURNER: My Lord, in the -- 8 MR JUSTICE PETER SMITH: Because I know what will happen. 9 If I say no, you will go to the Court of Appeal and, 10 whatever else happens, that just kiboshes the whole 11 timetable. 12 MR TURNER: If your Lordship says no, then we will take this 13 to the Court of Appeal, yes. 14 MR JUSTICE PETER SMITH: I know that. Your clients are not 15 interested in what I have to say. Since Monday, they 16 have been operating on a pre-determined operation to 17 have me removed from the case, whatever I say. 18 MR TURNER: The perspective of British Airways, which they 19 see, I submit, is a clear case, is that the fair-minded 20 and well-informed observer would say that a real risk of 21 bias has arisen in -- 22 MR JUSTICE PETER SMITH: I don't accept that for one minute, 23 Mr Turner. 24 MR TURNER: My Lord, in the light of your indication, I have 25 no desire to hold a prolonged hearing about this. If 38

1 your Lordship pleases, I will go quickly through the 2 remaining points and I can do so in 15 minutes -- 3 MR JUSTICE PETER SMITH: If you must. I have read them. 4 I know the Court of Appeal says we have to read them 5 even if we don't accept them; and listen to you even 6 though we don't accept them, even though we have read 7 them. 8 It is over to you, Mr Turner. I have told you what 9 is going to happen. You can either carry on or you can 10 not. It is entirely up to you. 11 MR TURNER: My Lord, if you have taken that decision, I am 12 very grateful for that and we need not discuss the basis 13 for it, and certainly not now. If your Lordship 14 therefore is prepared to recuse yourself from the 15 proceedings now -- 16 MR JUSTICE PETER SMITH: I repeat, are your clients not even 17 willing for me to deal with the administrative issues on 18 the CMC next week? None of which, it seems to me, are 19 going to turn on issues as to credibility or bad faith 20 or anything. They are purely procedural matters, as far 21 as I can see. I can't conceive of any situation where 22 they cannot easily be dealt with. Your clients are not 23 even willing for that to happen? 24 MR TURNER: Those are matters of significance, as we see 25 them, and we are concerned, in the light of the 39

1 submission of apparent bias, that your Lordship should 2 not hear that -- 3 MR JUSTICE PETER SMITH: Am I allowed -- 4 MR TURNER: -- application. 5 MR JUSTICE PETER SMITH: Am I allowed to say what Hausfeld 6 have said to me about your application in the Bao Xiang 7 or should I not deal with that, what they say? Because 8 I am not quite sure what happens to your application, 9 which is listed for the CMC which will not take place. 10 MR TURNER: I would ask your Lordship not to pre-judge or 11 give any indication about that matter. If you -- 12 MR JUSTICE PETER SMITH: It is listed for next week, isn't 13 it? 14 MR TURNER: Yes. If your Lordship -- 15 MR JUSTICE PETER SMITH: I can't take it out. You won't 16 allow me to take it out. I am not fit to make that 17 decision. 18 MR TURNER: My Lord, if you will recuse yourself from these 19 proceedings, that is all that needs to be done. All 20 parties do support, for different reasons, as I say, the 21 question of adjournment, including in relation to BA's 22 application on Bau Xiang. 23 MR JUSTICE PETER SMITH: You agree that it should be 24 adjourned, do you? 25 MR TURNER: This is on the basis that your Lordship has 40

1 informed us that there is not another judge available at 2 this short notice to hear the case next week. We have 3 been preparing industriously and actively for that 4 hearing. We have applications which we would contest 5 I do not think, however -- 6 MR JUSTICE PETER SMITH: Have you issued your applications 7 yet? 8 MR TURNER: Yes. 9 MR JUSTICE PETER SMITH: I haven't seen them. 10 MR TURNER: Well, my Lord, they have been. I do apologise 11 for that. 12 MR JUSTICE PETER SMITH: Have skeleton arguments been lodged 13 yet? 14 MR TURNER: They have not. 15 My Lord, our position is -- 16 MR JUSTICE PETER SMITH: How much reading time is there in 17 it for next week? 18 MR TURNER: Reading time has not specifically been allocated 19 separately for the hearing next week, which I think is 20 floating to begin from the Monday. 21 What I would say, my Lord, is that in the light of 22 your Lordship's indication, the right thing to do is to 23 act on the recusal now. The parties are agreed as to 24 the course in relation to the July CMC. It is indicated 25 in the draft order that you have in that bundle, that we 41

1 provided with our application, at paragraph 2(2). That 2 is at tab 3, page 80. It was that the July CMC should 3 be adjourned to the first convenient date after 4 1 October in the Michaelmas term. 5 MR JUSTICE PETER SMITH: Before or after the things that 6 were already listed? You have got three days listed 7 already for October, haven't you? The strikeout. 8 MR TURNER: Oh yes. They would have to be also listed for 9 the October slot and we would have to find a time where 10 those could also be dealt with. Your Lordship is right 11 that there is also the Bau Xiang matter coming in, 12 in October, and the parties do need now to be preparing 13 for that too. 14 MR JUSTICE PETER SMITH: What about the stay for 15 remediation? I am not even competent to do that, am I? 16 MR TURNER: My Lord, with respect, there are arguments to be 17 held in relation to that too. 18 MR JUSTICE PETER SMITH: You oppose the stay for 19 remediation, do you? 20 MR TURNER: My Lord, I am not going to develop the 21 submission on that now. But yes, we will have arguments 22 to put before your Lordship concerning the right stage 23 in the litigation, when it has been reached. 24 MR JUSTICE PETER SMITH: I thought we flagged that up 25 several months ago and it was all resolved. Never mind. 42

1 Anything more to say? 2 MR TURNER: My Lord, no. I am grateful, my Lord. 3 MR JUSTICE PETER SMITH: Thank you, Mr Turner. 4 Mr Harris, do you want to say anything? 5 Submissions by MR HARRIS 6 MR HARRIS: My Lord, just a few brief remarks, on the 7 premise that your Lordship is going to recuse himself 8 from the case. 9 MR JUSTICE PETER SMITH: You are not going to try to 10 persuade me to the contrary, are you? 11 MR HARRIS: It is a difficult situation, my Lord, and the 12 answer is no. I have very clear and express 13 instructions that we maintain an entirely neutral stance 14 on the dispute that has arisen. I would just echo your 15 Lordship's remarks made at 12.45 today that you "can't 16 expect anyone else to become involved in it because they 17 don't know anything about it". We find ourselves in 18 that position. That is one reason. But my instructions 19 are very clear on this point. We remain entirely. 20 Your Lordship will also appreciate -- and this is 21 one of the things I wanted to raise in any event -- that 22 another reason for remaining neutral is there are costs 23 associated with this sort of an application and we 24 effectively cannot find ourselves dragged into 25 an application of this type, that has potential cost 43

1 consequences for our client. 2 That is the clear stance and those are the two 3 reasons. 4 I am in your Lordship's hands as to order, but I do 5 wish to address you briefly on paragraph 3 of the draft 6 order that BA have put forward, which is that costs of 7 the recusal application should be in the case. We do 8 object to that. 9 MR TURNER: There's no order as to costs. 10 MR HARRIS: Oh well, I am grateful. If it is proposed no 11 order, we have no difficulty with that. I am grateful. 12 That goes. 13 Mr Turner is correct to say that all parties' stance 14 is that there should now be an adjournment of the CMC 15 that is currently listed for next week. There are 16 different reasons for that from the different parties, 17 but I am not keen to develop them if your Lordship is 18 already sufficiently persuaded that it cannot, in 19 reality, take place next week. All the parties' stance 20 jointly is that it should be relisted to be heard on the 21 first available date in the Michaelmas term, when a new 22 judge is identified. 23 The only slight -- unless your Lordship would like 24 me to explain a bit further why, then I shall not do so. 25 What I should just say, though, is that Mr Turner 44

1 has made the submission that the Bau Xiang application, 2 the strikeout, should happen at the same time as the 3 relisted CMC and we don't take the same view. They are 4 separate applications. They are currently already 5 separate, they would not have happened together next 6 week. So there would be no need to find a slot of, say, 7 five or six days where all the CMC issues can be listed 8 and then simultaneously or alongside or one after the 9 other the Bau Xiang strikeout application. That is not 10 a spectre that need worry us. 11 I am really in your Lordship's hands. There is 12 a joint position about adjournment. It has arisen in 13 unfortunate circumstances, but that is the position. 14 MR JUSTICE PETER SMITH: Mr Jowell? 15 MR JOWELL: My Lord, we support Mr Turner's position and 16 I don't think it is necessary for me to elucidate 17 further. We also support the need for an adjournment. 18 MR JUSTICE PETER SMITH: Thank you. 19 (Judgment given, subject to approval, separately 20 transcribed) 21 I will, if necessary, adjourn the application that 22 BA issued, I think, yesterday for a strikeout in the Bau 23 Xiang litigation as well, to be considered as part of 24 the other matters which the judge will be required to 25 do. And I will make an order as to costs. 45

1 Mr Patton, can you draw that order up, please? 2 MR PATTON: Yes, my Lord. 3 MR JUSTICE PETER SMITH: And I want that by 4 o'clock today. 4 MR PATTON: Yes, my Lord. 5 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. 9 MR TURNER: My Lord, I am very grateful for your Lordship's 10 decision. BA does disagree with the reasons, that would 11 be obvious. 12 The only point that I would raise in relation to the 13 order is the date of 2 October and whether that is 14 manageable all round. If your Lordship were able to say 15 the first available or convenient date from -- 16 MR JUSTICE PETER SMITH: I know you lot. That could be 17 next January. 18 MR TURNER: Well -- 19 MR JUSTICE PETER SMITH: This is only to welcome the new 20 judge to the circus. You don't need to have the full 21 panoply there. And in fact, you could probably, as soon 22 as you find out who the new judge is, start 23 a communication exercise to reduce it. So maybe we 24 should do it on the date which is fixed for the current 25 strikeout. 46

1 MR TURNER: Yes, yes. 2 MR JUSTICE PETER SMITH: What date is the next strikeout? 3 MR TURNER: That is 12 October. 4 MR JUSTICE PETER SMITH: The only problem about that is that 5 will then mean the strikeout will be vacated. Do the 6 parties want that? 7 MR TURNER: My Lord, we will stay with the 2 October and we 8 will ensure that that is ... 9 MR JUSTICE PETER SMITH: I thought so, the 2nd. All right. 10 Now, you will want a transcript of my decision, but you 11 are not to have it until I have approved it. 12 MR TURNER: Yes, my Lord. I think LiveNote is operational 13 today. 14 MR JUSTICE PETER SMITH: I know you are reading it, but 15 I have not got the LiveNote. Oh yes, I have. Yes, 16 I have. 17 MR TURNER: But we will, of course, wait for your Lordship 18 to approve the transcript. 19 MR JUSTICE PETER SMITH: So the transcript writers will 20 provide the judgment in draft form, separate from the 21 transcript of the hearing. 22 Thank you all very much. What do you want me to do 23 with the big bag I have got, apart from sending it to 24 Private Eye? It is the unredacted decision of the 25 Commission which I hold at the moment to, I think, your 47

1 order. 2 MR HARRIS: My Lord, you could always send it to us! 3 MR TURNER: If your Lordship sends it back to Slaughter and 4 May -- 5 MR JUSTICE PETER SMITH: If you wait, my clerk will give it 6 to you. 7 MR TURNER: Yes. 8 (1.38 pm) 9 (The hearing adjourned until a further date) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 48

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