Mr Justice Peter Smith came out fighting after the Court of Appeal rebuked the judge for blighting his judgment with personal feelings in a recusal application.
Hours after the appeal court handed down its decision (4 July), Peter Smith J issued a defiant statement saying that he would not be standing down as he had not been told the decision.
The judge wrote: “As no one in the Court of Appeal or anyone else in the Ministry of Justice has yet actually told me I have been removed (although I discerned this when I prepared to sit on Tuesday but nobody turned up), and no one has given me any reasons for my removal, I am unable to comment, save to say that I will not be resigning.
“When I am informed officially of the decision and the reasons I will consider what, if anything, I need to do or say then.”
Master of the Rolls Sir Anthony Clarke, who led the ruling, quoted the guide to judicial conduct issued by the Judges’ Council, which reads: “A current or recent business association with a party will usually mean that a judge should not sit on a case.”
The application for Peter Smith J’s recusal arose from Howell v Lees-Millais, which was due to be heard on 28 June.
Addleshaw Goddard, whose head of private client Paul Howell is one of the parties involved in the case, on hearing that Peter Smith J would be presiding over the case requested the judge stand down as it felt he may be biased against Howell and the firm.
Addleshaws claimed that Peter Smith J may be prejudiced towards the firm as it was in negotiations for the judge to join the firm. The talks, which went on for five months, broke down at the end of May this year after an exchange of emails between the firm’s head of the contentious group Simon Twigden and Peter Smith J.
The judge had emailed Twigden asking for a decision on whether he would be joining the firm before June, as he needed to know where he stood. Twigden replied that, due to the firm prioritising banking and corporate, there was no way of financing his move to Addleshaws.
Peter Smith J responded, stating “the considerable advantages” of being associated with someone such as himself and his “considerable disappointment” at not being offered a job.
When Peter Smith J was again turned down, the judge wrote: “I found your first email insulting and your second condescending. I didn’t think the response should have been from you by emails. You should have the courtesy to speak to me.”
The judge added: “I feel you have wasted my time for several months. I am extremely disappointed you have allowed bean counters to prevail.”
The email exchange was made public by the Court of Appeal, which ruled that it showed Peter Smith J’s “animosity” towards the firm.
Clarke said the exchanges “clearly show the judge was upset” and also held “animosity” towards Twigden and the firm. He added: “I can understand their real concern when they learnt that the judge was to hear their own application.”
The emergency Court of Appeal hearing came about after an initial application to Peter Smith J for the judge to be recused was refused.
Peter Crampin QC of Radcliffe Chambers appeared at the original application to Peter Smith J, with Twigden being put forward as a witness.
Addleshaws, however, was not content with the application being refused, so it instructed Charles Flint QC and Tom Weisselberg of Blackstone Chambers in the Court of Appeal.
The decision to instruct additional counsel came about because Addleshaws was not sure that its appeal would succeed, so it needed Crampin to continue preparing for the Howell trial.
The leave to appeal was allowed by the Appellant Court on 2 July, with the decisions being handed down on 4 July, when ruling details of what took place at Crampin’s initial application to Peter Smith J were revealed.
Clarke told the court that the judge “had asked whether these criticisms [of him in Twigden’s statement] had any adverse effect on his joining the firm, and Mr Twigden had said it would not”.
Clarke said this instance was an example of Peter Smith J cross-examining the witness. He held: “I’m bound to say it’s not appropriate for any judge to cross-examine Mr Twigden. It was rather like he was acting as a defence advocate and was fighting his own case.”
The court also held that, during the first recusal hearing, the judge even introduced his own evidence. When Crampin referred to Peter Smith J’s “unsuccessful job application”, the judge interrupted, saying: “I made no job application. They invited me.”
Clarke said there were other exchanges in court that led to Crampin saying the judge’s language was “intemperate”.
Clarke quoted Peter Smith J telling Crampin: “It’s about time you grew up. If you think this is intemperate then you’re on another planet to me.”
Peter Smith J even told Crampin that his remarks to the judge “could have professional consequences”.
Clarke, in his ruling, said: “I’m bound to say these exchanges seem to me somewhat extraordinary”.
He said the judge’s approach was “quite wrong”, that Peter Smith J got “somewhat carried away” and the need to recuse was “not close to borderline, but was in fact beyond doubt”.
Sir Igor Judge, president of the Queen’s Bench Division, concurred with Clarke, saying: “The application to ask Mr Justice Peter Smith to recuse himself was entirely justified.”
Judge added that Peter Smith J’s attitude towards Addleshaws, about which the firm was complaining, “rose directly from the judge’s private dealings”.
This is not the first time Peter Smith J has been criticised by the Court of Appeal. Lord Justice Lloyd’s Court of Appeal gave him a battering over The Da Vinci Code case (The Lawyer, 9 April).
Although the decision was upheld and the appeal failed, Lloyd LJ found that Peter Smith J’s original judgment was “not easy to read or to understand”.
Lord Justice Mummery agreed, saying the imperfections in the judgment were the catalyst for an unnecessary appeal. “There was a degree of confusion and possible self-contradiction and misdirection in the fact-finding process,” he stated.