Single Judgments in the Superior Courts
The time has arrived for single judgments in the superior courts.
From time immemorial it has been the practice for the judges frequently, although not necessarily always, to hand down multiple judgments.
Two major cases in the last few days demonstrate the practice. In Miller v Secretary of State for Exiting the European Union [2017] UKSC5 (“the Brexit judgment”) the eight Supreme Court judges who comprised the majority – thankfully in a case of this importance – elected to hand down a single judgment. But there were three dissenters: Lord Reed gave a judgment which ran to around 33 pages, Lord Carnwath’s dissent ran to around 11 pages and the footnote of Lord Hughes was around three pages.
Apart from satisfying the egos of those concerned, one wonders how it aids the public or leads to greater certainty in the law.
But the second case to which I shall now refer is far worse. FirstGroup PLC v Paulley [2017] UKSC4 concerned a wheelchair user who had succeeded before a Recorder in the County Court but was reversed by the Court of Appeal. Again, the case was of such significance that the Supreme Court felt it appropriate to sit with seven judges.
Mr Paulley attempted to board one of FirstGroup’s buses but the space bearing the notice “Please give up this space for a wheelchair user” was occupied by a woman with a sleeping child in a pushchair. She was asked by the driver to fold down the chair and move but she declined saying that it did not fold down. As a result, Mr Paulley had to wait for the next bus, no doubt at the same time contemplating his proceedings against FirstGroup for unlawful discrimination on the ground of his disability.
The Recorder held that reasonable adjustments could have been achieved by altering the Notice to require non-disabled passengers occupying a space to move if a wheelchair user needed to use it or adopting an enforcement policy requiring non-disabled passengers to leave the bus if they failed to comply. The Recorder found in his favour and awarded him £5,500 in damages.
FirstGroup’s appeal to the Court of Appeal was unanimously allowed, the Court holding that it was not reasonable to hold that FirstGroup should adjust its policy so that its drivers required, rather than requested, non-wheelchair users to vacate a space in such circumstances or to request that such a passenger leave the bus.
If ever there was a case that needed a single, clear judgment from the Supreme Court justices, here it was, but the judges found themselves in considerable difficulty. They unanimously allowed the appeal but only to a limited extent and, by a majority, declined to reinstate Mr Paulley’s damages.
The President, Lord Neuberger (with whom Lord Reed appears to have agreed entirely) allowed the appeal only to the extent that FirstGroup’s policy of requiring a driver to simply request a non-wheelchair user to vacate the space without taking any further steps was unjustified. He should have considered some further step to pressure the non-wheelchair user to vacate the space, depending on the circumstances. Lord Neuberger’s 25 page judgment was followed by four pages from Lord Toulson who felt there should be further legislative provision, and two pages from Lord Sumption who had reservations of his own and felt it was all rather unsatisfactory.
There then followed, as to the damages and the precise procedure to be followed, dissenting judgments from Lady Hale (5 pages), Lord Kerr (10 pages) and Lord Clarke (6 pages).
Whatever the true merits of the arguments, faced with all this one can only pity the poor bus driver whose precise actions were being picked apart by some of the brightest brains in the country. After all, he was there just to drive the bus.
The principal point is where does all this leave us? I respectfully suggest that their Lordships were being too self-indulgent. The public would have been better served if they had handed down a single judgment on which the majority agreed. It does not help the loser to know that this was all rather difficult while some judges agreed with him on some aspects but perhaps not others, and unwittingly aids less responsible journalists to select misleading headlines for their stories.
It is time that our superior courts, and most certainly the Supreme Court, followed the example of the European Court of Justice which always hands down single judgments as judgments of the court, with brief and clear decisions for all to follow.