Hale: Judges must fight claimant or defendant “sympathies”

Hale: It takes such courage to disagree with the view of the Lord Chief Justice

The president of the Supreme Court has said judges must have the “moral courage” to stand up to their own prejudices, such as favouring accident victims or insurers, workers or employers.

Lady Hale also praised a judge for showing moral courage by disagreeing with a former Lord Chief Justice in a costs case involving an acquitted defendant in a criminal trial.

She said all judges had “conscious or unconscious sympathies for one side rather than the other which we do have to do our best to recognise and to conquer”.

She went on: “A well-known example is personal injury actions – there have always been judges who are more sympathetic to claimants who have been injured at work or in a road traffic accident and other judges who are more sympathetic to the insurance companies fighting the claim.

“Another example could be employment cases – some judges may be more sympathetic to the claims of employees against their employers and others may be more sympathetic to the employers.”

Delivering a speech on moral courage in the law at Worcester Cathedral, Lady Hale said she recently read a judgment on the “esoteric and usually mind-numbing subject” of costs.

“These days an acquitted defendant in a criminal trial can only get costs against the prosecution in very limited circumstances – usually where they have acted in some way improperly.

“The question was what was meant by improperly. There was a line of cases giving it quite a broad meaning in that context. This meant that more acquitted defendants could get their costs.

“But there was another line of cases, dealing with when the lawyers acting in a case can be ordered to pay the costs wasted because they have behaved improperly. That line imposed a more stringent test. This meant that fewer lawyers had to pay wasted costs.

“And there was a recent pronouncement by the then Lord Chief Justice that the more stringent test also applied in the context of ordering the prosecution to pay the defence costs. The judge reviewed all the cases thoroughly and decided to follow earlier line of cases and not to follow what the Lord Chief Justice had said.”

Lady Hale said “right or wrong”, the judge in the case showed moral courage by ploughing through the cases and thinking it through rather than simply agreeing with the Lord Chief Justice.

She went on: “We must have the moral courage to stand up to our perception of what is most likely to find favour with our superiors and thus to further our own careers or enhance our reputations.

“It takes such courage to disagree with the view of the Lord Chief Justice, especially if this involves ordering the prosecution to pay costs running well into seven figures.”

The president praised Lord Mance, who retired from the Supreme Court last summer, for showing “extreme” moral courage in his ruling last year on the challenge brought by the Northern Ireland Human Rights Commission against the ban on abortion.

Lady Hale said Lord Mance was “very firmly of view” that Northern Ireland abortion law was incompatible with the European Convention on Human Rights.

“But he also formed view that the commission did not have the standing to bring the case. So we had no power to make a formal declaration of incompatibility.”

Lady Hale said this was “undoubtedly a tenable view” and three Supreme Court justices agreed with Lord Mance, but three other justices, including Lady Hale, “would have held” that the commission did have standing.

“It certainly takes moral courage of a high order to adopt an interpretation which means that you cannot make the order which you think should be made.”

Lady Hale added: “We are fortunate in our court that we all respect one another. Even if we disagree, I believe that we do so out of conscientious adherence to legal principle, and not out of any lack of the moral courage to make a decision which some may think bold.

“And we stay friends afterwards. Nor do we have recognisable ‘camps’ or factions. We are not predictable enough. Not all Supreme Courts are so fortunate.”

The speech also highlighted the need for courage to stand up to the media – citing the reaction of the PJS decision, where the Supreme Court upholding an injunction that stopped the identification of a celebrity caught up in a sex scandal, and the Daily Mail’s infamous ‘Enemies of the people’ headline over the High Court’s article 50 ruling.

On the former, she noted: “We were ridiculed – I was reportedly ‘known for my radical liberal ideas’ and also known as Ms Diversity (neither, apparently, a good thing) – while the dissenter was praised.

“Ironically, despite this, the newspaper settled the case, agreed to pay damages and to maintain the anonymity of everyone involved.”

Similarly, in the article 50 case, two of the four Supreme Court judges singled out for their “alleged European links and sympathies” actually voted against upholding the High Court decision, Lady Hale said.

“But the Daily Mail’s response to our decision was very clever. They published the same size pictures of the three dissenters under the banner headline ‘Champions of the People’.”


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