My Lords, I declare an interest: I generally pay my mortgage by debating the difference between “significant” and “more than minor”, so I am on very familiar territory.
The problem with the word “significant” is this: what is the opposite of significant? It is insignificant. There is therefore a constant debate in the courts when something, generally a contract, is said to be significant. Does it mean substantial—that is, quite a lot—or does
it mean not insignificant, in other words more than de minimis? That is the problem with a word such as “significant”. For those reasons, I respectfully endorse the approach of the noble and learned Lord, Lord Hope of Craighead. We need a test here that is easy to apply.
Elsewhere in the law, we have the concept of significant risk. Of course, that is even more difficult, because there you are talking about risk—something that might happen—whereas here, in Motion 1A, we are talking about something that has happened or is happening. The noble and learned Baroness, Lady Butler-Sloss, asked what the difference was between “more than minor” and “significant”. In the Court of Appeal case of R v Lang, Lady Justice Rose, who is now in the Supreme Court, said in her judgment:
“The risk identified must be significant. This is a higher threshold than mere possibility of occurrence”—
that is, a risk case—
“and in our view can be taken to mean … ‘noteworthy, of considerable amount or importance’”.
Even in that definition, there is a difference, I would suggest, between “noteworthy” and “of considerable amount”—and that is in the context of a risk, not something that is actually happening.
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I would strongly endorse the approach of the noble and learned Lord, Lord Hope. What we are dealing with here is not a risk; it is something that is actually happening. We do not want a test of “reasonable” or “tolerable”, where it is all in the eye of the beholder. We need a test where you can see it and you know whether it exists or not, and I would suggest that, for those reasons, “more than minor” really hits the nail on the head.