Editor's Note

EDITOR’S NOTE This journal has in the past commented court with counsel for British Airways as he walked through the lobby, he on the perils of practitioners sending ('Right, Mr Turner, here is a question for told her that he would not speak to his unsolicited communications to judges.1 you. What happened to the luggage?'). father on her behalf until she withdrew As appears from a recent decision When counsel declined to address the her lies, and the encounter lasted less of the Court of Appeal in England2, matter in open court, describing it as than a minute. According Mrs Harb communications travelling in the a personal complaint, Peter Smith J they discussed, and indeed concluded, opposite direction may be equally ill- suggested that he might order the chief an agreement pursuant to which he advised. executive of British Airways to appear would pay her £12 million and procure before him that day, presumably to the transfer to her of two properties The case involved an oral agreement said provide an explanation ('In that case, in Cheyne Walk, Chelsea and she, in to have been entered into in the lobby of do you want me to order your chief exchange, would withdraw certain factual the Dorchester Hotel in London in the executive to appear before me today?'). assertions she had made about the king. early hours of 20 June 2003 between, Eventually, however, the trial judge on the one hand, Prince Abdul Aziz bin Some years later proceedings were recused himself.4 Fahd, a member of the Saudi royal family brought to enforce this alleged and son of the late King Fahd and, on Enough background. Back to the judge’s agreement. The claim might seem the other, a Mrs Janan Harb, pursuant letter and the Court of Appeal case optimistic. It turned on an oral to which (according to Mrs Harb) the mentioned at the outset. The plaintiff, agreement allegedly entered into in prince promised to pay her £12 million Mrs Harb, had been living in Jeddah in a brief and impromptu conversation and cause to be transferred to her two the late 1960s and, according to her, had in a hotel lobby late at night 13 years properties in Cheyne Walk, Chelsea. married – indeed, she said they remained before the trial. The well known remarks First, some background. married, there having been no divorce in Watson v Foxman come to mind.5 under shari’a law – a man who was at However this is not the place to debate The case was heard at first instance that time the minister of the interior and the strengths of the case. The point for before Mr Justice Peter Smith, a judge who in due course became King Fahd. present purposes is that Peter Smith not unacquainted with public attention. Whatever its legal status, by 1970 the J found for Mrs Harb. The prince Some years before Mrs Harb’s case he relationship was at an end. Mrs Harb left appealed. heard a copyright case concerning the Saudi Arabia. novel The Da Vinci Code by Dan Brown. Now to the judge’s letter. The hearing of By 1999 Mrs Harb’s financial position The plot of the novel involves secret Mrs Harb’s trial concluded in July 2015. was perilous. She advised the King codes, cryptic messages and mysterious In September 2015, while judgment through an intermediary that she symbols. Getting into the spirit of was still reserved, Lord Pannick QC had decided to publish her memoirs, things, the judge’s reasons for decision published an article in The Times highly including salacious details of their incorporated their own secret code: it critical of Peter Smith J’s handling of intimate life. A compromise was reached. transpired that the initial letter of various the British Airways case. The article Mrs Harb received £5 million and signed sentences in the judgment spelled out concluded as follows: a deed of release. coded messages.3 Litigants are entitled to better Despite this payment, by 2002 Mrs service than this. The reputation of Moving on. In 2015 the same judge was Harb’s financial position had deteriorated our legal system is damaged by hearing a case in which British Airways again. In June 2003 she discovered that such behaviour. The Lord Chief was the defendant. In July of that year, the prince would shortly be visiting Justice should consider whether the judge and his wife went on a short action to address Mr Justice Peter London. Mrs Harb and a friend waited holiday to Florence, on a flight booked Smith’s injudicious conduct has, for him in the lobby of his hotel. When through British Airways. Upon their like his luggage, been delayed for he finally appeared, late in the evening, return they waited in vain at Gatwick too long. she approached him. A conversation Airport for their luggage. It transpired ensued. (A curious sidenote. In one of his books that the flight had left Florence leaving Lord Pannick discusses an appellate the passengers’ luggage behind. What was said during this conversation case in California in 1979, in which was at the heart of the case. According The judge was annoyed about his missing two of the judges were in agreement to the prince, Mrs Harb accosted him luggage. He raised the matter in open and the third in dissent.6 Upon reading [2016] (Spring) Bar News 2 Bar News : The Journal of the New South Wales Bar Association EDITOR’S NOTE the dissenting judgment, the majority I am extremely disappointed about it the prince included in his appeal a added a footnote to their joint opinion, because I have strongly supported contention that Peter Smith J’s judgment in which they observed that they felt your Chambers over the years was affected by apprehended bias. 'compelled by the nature of the attack especially in Silk Applications. Your The prince’s appeal was generally in the dissenting opinion to spell out a own application was supported by me and was strongly supported by successful, in the sense that the Court of response'. Their response to their judicial me to overcome doubts expressed to Appeal was not satisfied that a binding colleague consisted of seven sentences. me by brother Judges concerning agreement had been reached between the Using a code which seems to presage you. I have supported other people. prince and Mrs Harb and ordered a new that deployed by Peter Smith J in the Da It is obvious that Blackstone takes trial. Vinci Code case, the initial letters of these but does not give. seven sentences were: S.C.H.M.U.C.K. However the Court of Appeal rejected But I digress.) I will no longer support your the contention of apprehended bias. It Chambers. Please make that clear to held among other things that the fact On 1 November 2015 Peter Smith J members of your Chambers. I do that a judge might be, or appear to be, delivered his judgment in Mrs Harb’s not wish to be associated with irritated by or hostile to a particular case. Chambers that have people like advocate does not preclude the judge Pannick in it. On 1 December 2015 Peter Smith J fairly resolving the case and that an wrote to one of the two joint heads of The prince’s counsel in the proceedings informed and fair minded observer is to Lord Pannick QC’s chambers, Blackstone before Peter Smith J had both been be assumed to know this. Chambers, complaining about the article members of Blackstone Chambers. in The Times, and saying among other Given the views expressed in this letter, things: Bar News : The Journal of the New South Wales Bar Association [2016] (Spring) Bar News 3 EDITOR’S NOTE Nevertheless the Court of Appeal took a 'Legal Change – the role of advocates', by Endnotes very dim view of a judge writing a letter discussing some of the important cases 1. Bar News, Autumn 2014, p.36. of the kind described above: argued by Sir Maurice Byers. 2. Harb v Prince Abdul Aziz [2016] EWCA Civ 556 3. See eg The Guardian, 28 April 2006; https://www. It is difficult to believe that any We are also delighted to introduce a new theguardian.com/uk/2006/apr/28/books.danbrown; judge, still less a High Court judge, contributor, Advocata. This first column the judgment is Baigent v The Random House Group could have done so. It was a shocking Ltd [2006] EWHC 719 (Ch). is headed Sotto Voce and looks at the 4. Emerald Supplies Ltd v British Airways [2015] and, we regret to say, disgraceful advice – solicited or otherwise – a young EWHC 2201 (Ch). letter to write. It shows a deeply woman may receive on coming to the bar 5. Watson v Foxman (2000) 49 NSWLR 315 at 318 – worrying and fundamental lack of 319. concerning her voice and delivery. understanding of the proper role of a 6. David Pannick I Have To Move My Car: Tales of Unpersuasive Advocates and Injudicious Judges, Hart judge. What makes it worse is that it Elsewhere this issue includes the address Publishing, 2008 at 151; the case itself is People v comes on the heels of the BAA delivered by the Hon Murray Gleeson Arno (1979) 153 Cal Rptr 624, 628n (California baggage affair. In our view, the AC QC at the launch of the new Court of Appeal). comments of Lord Pannick, far from biography of Tom Hughes QC, as well being 'outrageous' as the judge said as a review of the same book by Victoria in the Letter, were justified.

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