United States of America v Nolan

The court delivered its judgment in this appeal on 9 November 2010 and, for the reasons it explained in that judgment, it resolved to make a reference to the Court of Justice of the European Union (‘the ECJ’) in relation to the question that the judgment identified.

Following the delivery of the judgment in draft to counsel, Mr Cavanagh QC on behalf of the appellant, the United States of America (‘the USA’), made a submission that the court should stay the making of the proposed reference until after the disposal by the employment tribunal of the "employee representative" issue that had been remitted to the employment tribunal by the Employment Appeal Tribunal, a remission that this court agreed with and upheld. Mr Cavanagh's point was that if that issue should be determined in favour of the USA, that would bring an end to the litigation and the making of a reference to the ECJ would at that point become unnecessary.

Mr Lissack QC, on behalf of Mrs Nolan, advanced submissions to the contrary effect, namely that whatever happened in relation to the remission to the employment tribunal, we should not defer making the reference but should proceed to make it straight away, the matter the subject of the proposed reference being one which is of general importance to employers.

The court concluded that it ought to hear oral argument on those rival contentions and we have had the benefit of such argument this morning, both sides effectively repeating their submissions. There is obviously some force, as is usually the case, in both arguments, but the course which has appealed to the court is one that really only emerged in the course of discussion this morning, namely that there is no reason in principle why the court should not make its reference straight away and why, subject to the employment tribunal being willing to proceed with it, the disposal of the remitted matter should not continue at the same time. If the outcome of that remitted matter is ultimately decided in favour of the USA, that will, as I have said, bring the litigation to an end; and it appears from a decision to which Mr Cavanagh referred us, Rosa Garcia Blanco v Instituto Nacional de la Seguridad Social (Case C-225/02), a decision of the second chamber of the ECJ delivered on 20 January 2005, that if the litigation is so disposed of the ECJ will not then continue with the reference.

That twin-track approach is one that appeals to me. It may perhaps involve the possibility of some costs being incurred which would be saved if a consecutive rather than a concurrent approach were adopted, but it is not suggested that that is a consideration which should carry the day against the twin-track approach; and for my part, I would therefore favour it. I would accordingly hold that we should not stay the making of the reference; and whilst we cannot strictly direct the employment tribunal to proceed now to deal with the remitted matter, I can myself see no reason why it should not do so.

We have also had argument on the form of the reference we should make. Mr Cavanagh has submitted a succinct form of reference, based on the question which the court itself raised in its judgment. Mr Lissack has produced a rather fuller form of reference, containing some six separate questions for the court to consider, the questions seeking to reflect a variety of different factual situations. As it seems to me, what this court wants is an answer to the question that it needs in order to dispose of the litigation before it and, to that end, I would favour the view that Mr Cavanagh's version is closer to what is required. The ECJ will have the benefit of our judgment and will see from it the nature of the question to which this court requires an answer; and the combination of that judgment and a form of reference as drafted by Mr Cavanagh will meet the needs of both the ECJ and this court.

I would accordingly propose that the order should be in the form prepared by Mr Cavanagh.

I agree.

I also agree.