Mrs Justice Rose takes over £1bn air-cargo case from recused Peter Smith J

Competition specialist Mrs Justice Rose has been appointed to succeed Mr Justice Peter Smith on a £1bn British Airways (BA) dispute after the latter agreed to recuse himself.

Peter Smith J had been appointed to oversee the mammoth damages case, which relates to a 2010 European Commission (EC) ruling that BA and a host of other airlines colluded to fix fuel and security surcharges for the carriage of air cargo.

However, BA had sought to have the judge removed from the case, initially claiming that he did not have the appropriate competition experience to handle it.

That attempt was unsuccessful, but Peter Smith J last week agreed to step down from the case following an altercation with the airline that arose when he was shifted from a BA flight to one with another carrier and his bags were subsequently misplaced (22 July 2015).

In delivering his judgment on the recusal application Peter Smith J was critical of BA and its lawyers at Slaughter and May, accusing them of conducting a continuing campaign to have him removed.

Peter Smith J said he had raised the issue of his luggage going missing with BA customer relations, who “rebuffed” his complaint. He then emailed BA’s chief executive and chairman Keith Williams and raised the issue with BA’s lead counsel, Monckton Chambers’ Jon Turner QC.

He added: “I do not believe for one minute that the reasonably minded observer, which is the test, as Mr Turner has reminded me of, would think that merely because I have raised issues over the non-delivery of my luggage of itself should lead to the possibility of bias.

“I believe a reasonably minded observer would see a Judge with a problem trying to resolve that issue and finding the parting question being obstructive and unwilling to address the issue and find a solution. A simple dispute as to the luggage cannot possible be grounds for recusal. However BA and its solicitors have simply escalated the problem almost immediately.”

Although Peter Smith J said he disagreed with BA’s reasons for wanting him to recuse himself, he would take himself off the case as his presence had become a “distraction”.

A case-management hearing scheduled for this week has now been put back to October, when Rose J, a former chair of the Competition Appeal Tribunal, will take over.

That hearing comes after Peter Smith J last year adjourned BA’s application to have the case struck out and also rejected the airline’s efforts to have the earlier EC decision redacted (30 October 2014).

The current dispute, Emerald Supplies Ltd & Others v British Airways plc, has been brought by three groups made up of several hundred claimants, who are represented in court by flower importers Emerald Supplies, against lead defendant BA and 23 other airlines.