No-one likes losing a court case. But it happens – even to the very best lawyers. How to respond in public (assuming your case is one the public is interested in)?
Until a judgment has been properly analysed and understood, a brief “We are disappointed. We will review it carefully and decide next steps.” is usually both sufficient and, more importantly, wise. In cases of obvious public interest, it may be clear in advance that the losing party is likely to appeal and saying so is unlikely to create any embarrassing hostages to fortune. But the one thing that a losing party should never do is issue misleading statements about what the judgment says. Doing so can create legal jeopardy if relied on by those who do not read the actual judgments themselves. It also shows disrespect for the court. Surely such misleading never happens? If only.
There have been recent examples of all three types of responses in recent weeks: two of them on the same day.
- Sex Matters’ challenge to the Corporation of London’s policy of allowing trans-identifying men to use the women-only pond on Hampstead Heath. Sex Matters lost on a number of procedural grounds so the substance of the Corporation’s policy was not considered by the court because the request for a judicial review simply did not reach the procedural threshold. Sex Matters’ response was short and to the point: it expressed its disappointment and noted the basis of the decision.
- The judicial review of the government’s decision to proscribe Palestine Action as a terrorist group, which the government has lost. The government has stated that it will appeal the judgment and, in light of that, the court has said that the government’s proscription remains in force until its appeal has been heard. It was important for the court to say this clearly, notwithstanding its decision that the government had not properly followed its own policy, because supporting a banned terrorist organisation is a criminal offence and people should not be misled into acting on the mistaken belief that it is now lawful to do so. The court is maintaining the status quo until a higher court determines the appeal.
- The Good Law Project’s (“GLP”) response to its challenge – and that of three anonymous parties – to the EHRC’s interim guidance following the Supreme Court’s judgment in the For Women Scotland (“FWS”) case in April 2025. The court rejected the challenge on multiple grounds: GLP itself had no standing to bring the case, though the three other parties did. The court ruled that the EHRC’s interim guidance was lawful, in the court’s words “an accurate statement of the law without misstatement or material omission.” It was in accordance with the Supreme Court’s FWS judgment, which also applied to Health and Safety regulations governing employers and it did not breach the parties’ ECHR rights. (A good analysis of the judgment can be found here.)
Briefly, the effect of the judgment is that:
- employers must provide employees with single-sex facilities;
- when service providers provide single-sex facilities, these must be limited to members of that sex only i.e. trans people identifying as a gender different to their sex are not entitled to access them;
- both employers and service providers can provide mixed sex facilities and/or single use lockable rooms as well; and
- trans people must not be left without any facilities at all.
What has GLP’s response been? It has issued a press release which does not accurately reflect what the judgment says. See here. This risks misleading the public, service providers and employers — unless they take the trouble to get their own expert legal advice. Worse: it risks misleading trans people themselves. They are being told by a body which purports to fight for their “rights” that the court has ruled that they have rights which in fact the court has expressly said they do not have. Telling those who rely on you, or may only choose to read what you say, something which is not true, which is — in fact — the opposite of the truth, is unkind, an epithet usually hurled at every opportunity and with no justification at those asking for the law to be upheld.
It is not the first time GLP has issued incorrect statements about cases it has lost. The most recent example was in its responses to the judgment in the Mermaids and The Charity Commission/LGB Alliance case. Mermaids sought to have the LGB Alliance’s charitable status removed. In order to succeed it needed to establish that it met the test to challenge the Charity Commission’s decision in the First Tier Tribunal and, if successful, show that the LGB Alliance’s purposes were not charitable. Mermaids failed to establish that its legal rights were in any sense affected by the decision to register LGB Alliance as a charity. It therefore failed on the first point. (So no ruling was made on the second point.)
The issue of standing to bring a judicial review may appear technical but is, in reality, fundamental, as was clear in the Sex Matters case about the Women’s Pond. In that case the court held that it was for a person affected by the Corporation of London’s policy to take the appropriate legal action – not Sex Matters.
The response of Mermaids and its lawyers, GLP, to losing its case against the Charity Commission was to:
- Ignore the reasons why they lost;
- Airily dismiss this as merely “technical” (which pretty much describes all legal judgments);
- Wrongly claim that they lost because the law was “so complex” when in reality it was because they were unable to meet the legal test on the facts; and
- Focus on some minor obiter dicta criticisms of LGB Alliance.
The absurd culmination of this “Nelsonian” approach to the judgment has been the claim that, if they had only won the standing point, they would have won the case. “If I had won I would not have lost” is true but a bizarre response to a case which you have lost, especially since there appeared to be no engagement with the reasons why and what this meant for themselves and others.
In the latest case, against the ECHR, the GLP has gone further. It has now written to the Minister for Women and Equalities demanding that she withdraw the draft Code of Practice prepared by the ECHR to provide guidance to organisations following the Supreme Court judgment in the FWS case and making various other demands, based on what appears to be its incorrect understanding of the judgment. Why this demand is unjustified is discussed here.
This has been compounded by three MPs issuing statements repeating, in very similar terms, the incorrect description of what the judgment says. MPs are legislators and the very minimum voters are entitled to expect of them is that they read the judgment and understand the actual law, rather than repeating spin from disappointed losing parties. Disappointment at an outcome may be understandable; but it is no excuse for laziness and putting out incorrect information about the law to voters.
Does this matter?
Yes.
There is something worrying — and dangerous — about misconstruction of a court judgment. As well as a finding on the issues before it, judgments are a signal both to the parties involved and to others to reflect on what it says and, as necessary, change their behaviour. In some cases, they may be a clear signal or instruction to government or public bodies to act. Ignoring and/or mischaracterising what a judgment says – whether because you don’t like it or disagree with it or to save face or because you don’t understand it – is fundamentally disrespectful of the court and the rule of law. There is also a risk of personal attacks on the judges in a manner which goes beyond good faith criticism of the legal reasoning. This is not a theoretical risk. It happened to the judges in the Miller case on Article 50 and Brexit in November 2016 with one newspaper calling them “Enemies of the People“.
Those doing it are essentially saying that they know the law better than the court. They are sending out two messages: you can ignore laws if you feel like it and deprive groups you don’t like or don’t care about of their rights; and, second, accuracy about what the law says does not matter. One day this sort of conduct could be used against groups they do care about, and they will then have nowhere to hide and no basis to object, as so well expressed here (“And when the last law was down, and the Devil turned round on you, where would you hide,…. the laws all being flat?”) It is also all too tempting for lay people to ignore this on the basis that this issue is not one that bothers you. But if MPs and lawyers behave like this on this issue, one day they might do so on something you do care about.
Issuing misleading or inaccurate statements about the law might – (just about, if feeling very generous indeed) – be forgivable in non-lawyers. It most certainly is not when done by lawyers or legislators. It is a Trumpian approach, both to facts and the rule of law. It is a dangerous development in what is meant to be a democratic, pluralist country based on the rule of law. Neither legislators nor lawyers should engage in or be complicit in such conduct.