This case is of interest for the length of time that it took the Justices to make up their minds, for the wide range of views expressed and for the Justices’ failure to come up with a clearer solution than that expressed by the Court of Appeal. All in all not the Supreme Court’s finest hour.
The case is included on this blog to show the Supreme Court’s willingness to take unusual steps to decide a case in circumstances where they might legitimately have declined even to hear it.
Lord Neuberger: (with whom Lord Reed agreed)
‘60. The second problem arises from the fact that, in order for Mr [P] to succeed in his claim, he must not only establish that FirstGroup should have made an adjustment to its PCP, but also that, had that adjustment been made, there is at least a real prospect that it would have made a difference… the precise formulation of the test is not relevant for present purposes. The essential point is that there is no finding by the Recorder that, if FirstGroup had phrased the Notice more peremptorily and/or required its drivers to be more forceful, this requirement would have been satisfied, given that there would have been no question of actual enforcement. In particular, as Lord Toulson points out in para 85 below, there has been no formal appeal and no written or oral argument against the finding that the woman occupying the space refused to move after saying that her pushchair did not fold down. There is therefore no satisfactory basis upon which this Court can, in fairness to FirstGroup, conclude that there would have been a real prospect that such an adjustment to its PCP would have resulted in Mr [P] not being placed in the disadvantage that he was.
61. In my judgment, the solution which enables this Court both to be procedurally fair to the parties and to provide as much guidance as possible in this important field, is to decide whether the alternative contention should, on the evidence given to the Recorder and findings made by him, succeed but, in the event of our so deciding not to award Mr [P] any damages. The evidence and arguments in relation to the alternative contention were advanced before the Recorder, and, by accepting Mr [P’s] more extreme primary contention, it is very likely that he must or would have decided to reject FirstGroup’s arguments against the alternative. Although the alternative contention was not advanced in the Court of Appeal, we have the benefit of some valuable thoughts on it from Underhill and Arden LJJ. Accordingly, the fact that a case based on the alternative contention was not run in the Court of Appeal should not be fatal to Mr [P’s] ability to run it before this Court. On the other hand, to award Mr [P] any damages in the event of this Court accepting the alternative contention would be unwarranted as the Recorder made no finding as to whether he would have been disadvantaged had the PCP been adjusted accordingly. (The first instance finding that Mr [P] was disadvantaged was based on the Recorder’s view as to what FirstGroup’s policy should have been, which, for the reasons which I have attempted to give, was too prescriptive.) It is true that this approach would make any finding as to the alternative contention somewhat hypothetical, and indeed arguably obiter, but that should not, in my opinion, stand in the way of our addressing it.’
Edited for ease of reading.