Thursday, May 26, 2011


In his allegations against the opposition leader Fabian Picardo laid out on official government letterhead by Peter Caruana the chief minister described Mr Justice Peter Smith who was the judge in the Noble matter as “a senior UK judge” adding: “When the case came to the UK High Court the judge made several damning findings about Mr Picardo’s actions and conduct.”
The chief minister argues that because of these events in Picardo’s business life as a lawyer he is not fit to hold the post to which he aspires as leader of the GSLP. Peter Caruana, a fellow lawyer, makes great play of the statements by Mr Justice Peter Smith as proof against the opposition leader’s character and suitability as chief minister.
In his rebuttal of Peter Caruana’s invoking of the judge against him Fabian Picardo stated: “(he is) the only English High Court Judge ever to have been referred by the Lord Chief Justice of England and Wales for behaviour described by the Court of Appeal as "intemperate" and "somewhat extraordinary" to the Office of Judicial Complaints, which found that he had misconducted himself in Court; and as a result, the only English High Court Judge that the prestigious Times and the Telegraph newspapers have said has lost his judgment and should stand down.”
So who is Mr Justice Peter Smith and should we be wary of his statements and judgements? He is a Judge of the High Court of Justice in England and Wales and was appointed to that office in April 2002 assigned to the Chancery Division. He is perhaps best known to the general public as the judge who sat in The Da Vinci Code case and rejected claims by the authors of The Holy Blood and the Holy Grail that Dan Brown had violated their copyright. However the judge was criticized for including a coded section in his judgement. The Appeal Court stated: “It might have been preferable for him to have allowed himself more time for the preparation, checking and revision of the judgment.”
So when Peter Caruana describes him as “a senior UK judge” he is right but in 2003, just a year after his appointment, he was voted most unpopular chancery judge in a survey by Legal Business magazine. He seemingly went truly off the rails in 2007. It may be that his erratic judicial behaviour is due to ill health but he remains a judge and in January of this year he was removed from a case by the Appeal Court.
In 2007 the judge spent some months in communication with London solicitor’s firm, Addleshaw Goddard, in the hope of being employed by them. The discussions came to nothing but in July, about a month after the conclusion of those negotiations, the judge refused to stand down from hearing a heavily contested case (Howell v Lees Millais & Others) involving a partner in the same firm in his capacity as a trustee. On appeal from that decision, the Court of Appeal criticised the judge for his attitude and behaviour during the hearing when he was asked to step down and allowed the appeal, with the effect of removing him from the case. In its unanimous judgments of 4 July 2007, the Court of Appeal described the judge’s behaviour in part as Fabian Picardo has stated as “intemperate” and “somewhat extraordinary”.
The judge himself then issued a press release on the topic. On13 July 2007 the respected legal journalist Joshua Rozenburg wrote in the Daily Telegraph: “The time has surely come for Mr Justice Peter Smith to leave the Bench. A judge is nothing if he or she lacks judgment. But this is precisely the attribute that Sir Peter Winston Smith, 55, has recently failed to demonstrate.” Days later Frances Gibb in The Times also suggested it was time for the judge to go and both alluded to his ill health.

On January 25 of this year ‘The Lawyer’ reported the Court of Appeal had told Mr Justice Peter Smith to stand down from presiding over a professional negligence claim brought against Mills & Reeve after he expressed views unfavourable to the firm. The case revolves around alleged negligent advice the firm gave to a company chief executive that allegedly resulted in the businessman’s daughters paying a £1.3m inheritance tax bill.
On February 1 of this year Joshua Rozenburg wrote in Standpoint about this latest Court of Appeal decision: “I am grateful to Legal Week for alerting me to this decision delivered by the Court of Appeal on 20 January...It turned out that Mr Justice Peter Smith ‘had personal direct experience of a procedure which was either the same as or very similar to that which [the businessman] underwent’...The judge has expressed strong views as to the prospects of that claim, as I have mentioned above. He has also expressed strong views unfavourable to the defendants, though not in relation to this aspect of the case. In those circumstances it seems to me plain that when the trial starts again, it should be heard by a different judge. This is not the first time that Mr Justice Peter Smith has expressed strong views about a law firm. In 2007, I argued that Mr Justice Peter Smith had lost his judgment and should leave the bench. I stand by what I said then.”
In his rebuttal to the chief minister’s claims Fabian Picardo wrote of Mr Justice Peter Smith and the Noble case: “In this matter, the Judge showed at the outset of proceedings a predisposition to see the use of trusts and the movement of money through different jurisdictions as the mechanism by which “fraudsters hide money”. In those circumstances, it is possible to see how prejudiced to the Gibraltar professionals the Judge was even before he started to hear any evidence.”
It is clear Mr Justice Peter Smith should never have heard the Noble or any other case. So was the judge biased against Gibraltar? Does he lack judgement? You have read the facts about him for yourself. You be the judge.