The curious case of Mr Justice Smith

“This is a most unusual case.”

That is how Sir Anthony Clarke chose to describe the circumstances surrounding Mr Justice Peter Smith’s refusal to stand down from a case involving an Addleshaw Goddard partner, despite the fact negotiations for the judge to join the firm had recently broken down acrimoniously. The Master of the Rolls is clearly also a master of the understatement.

It all began a few weeks ago when Addleshaws’ head of litigation, Simon Twigden, emailed Smith to inform the judge that the firm’s focus on banking and corporate meant it could not follow through on “an innovative” proposal for Smith to join the firm.

“I am extremely disappointed because contrary to your fine words you have allowed the bean counters to prevail,” was Smith’s tetchy reply. “I am not very impressed with you or your firm at the moment and I do not think the tone of your emails enhances the position.”

Small wonder, given this response, that Addleshaws asked Smith to step down from hearing a trust case involving the head of the firm’s private client department, Paul Howell.

Not only did Smith refuse but he subjected Twigden to what Clarke describes as a “wholly inappropriate” cross examination before sharing “a somewhat extraordinary” exchange with Twigden’s counsel, Peter Crampin QC.

Full marks to Crampin for keeping his cool when Smith bridled at the suggestion the judge had reacted intemperately when Addleshaws decided not to take him on.

“I don’t know what part of the country you come from,” retorted Smith, “but it’s about time you grew up. If you think that’s intemperate, then you are on another planet from me.”

The same planet, it would appear, as the three Court of Appeal judges who heard Addleshaw’s appeal. Meanwhile, those supporters – and there are a lot of them - of the convention that judges are judges for life and should not be allowed to return to private practice have been presented with an open goal.

In September last year, the then Lord Chancellor, Lord Falconer, announced plans to end this convention. One early opponent of the move was the barrister Alistair Craig, who said it would undermine the public’s confidence in an independent judiciary “untainted by any actual or possible self-interest”.

It wasn’t long before the judges themselves weighed in. In a letter to Falconer, the Judges’ Council warned prophetically that the move “would further open serving judges to accusations of bias and would be detrimental to the public’s current perception of the judiciary as independent and impartial”.

The letter was written by the Lord Chief Justice, Lord Phillips, who yesterday took the unprecedented step of referring Mr Justice Smith to the Office for Judicial Complaints.

As for the plans to let judges negotiate lucrative moves to laws firms, a Ministry of Justice spokesman tells me the new Lord Chancellor, Jack Straw, has a busy in-tray and is yet to consider whether to proceed with them.

That is, of course, assuming he’ll be able to find them in all that long grass where Smith has inadvertently kicked them.

john.malpas@legalweek.com