McCall v Poulton & Ors

A preliminary reference to the ECJ is justified where a Community-law issue is central to liability and it is genuinely arguable that the ECJ may resolve it in favour of the party seeking the reference. A domestic decision does not end the inquiry where later ECJ authority creates a real question about its correctness or scope. The Court of Appeal held that this threshold was met for whether the Marleasing principle could extend from legislation to a contractual arrangement used to fulfil directive obligations, and whether the MIB was an emanation of the State. The general and recurring importance of those questions also supported an early reference.

Mr McCall was injured by the negligent driving of an uninsured motorist. He hired a replacement taxi from Helphire on credit and held post-accident cover from Angel Assistance. Angel later paid the hire charges and became subrogated to the claim. The MIB refused compensation for those charges under clauses 6(1)(c) and 17(1) of the Uninsured Drivers Agreement.

His Honour Judge Mitchell referred questions to the ECJ and granted permission to appeal. The MIB argued that the reference was unnecessary because domestic authority had settled the application of Marleasing to the agreement and had determined that the MIB was not an emanation of the State. The Court of Appeal reconsidered whether a reference was necessary in the changed circumstances.

1. Disposition. The appeal was dismissed. Angel’s payment of the hire charges removed the factual issue concerning subrogation which had previously been said to make a reference premature. The Court of Appeal therefore considered afresh whether the questions were necessary to enable judgment to be given.
2. Marleasing issue. The principle in Marleasing SA v La Comercial Internacional de Alimentaciόn SA [1990] ECR I-4135 requires national law to be interpreted, so far as possible, in the light of a directive’s wording and purpose. The Court of Appeal and the House of Lords had previously taken the view that the principle did not apply to the MIB agreement, which was a private contract rather than legislation: White v White [2001] 1 WLR 481. However, Evans v MIB [2003] ECR I-4447 and Pfeiffer v Deutches Rotes Kreuz [2004] ECR I-8835 could arguably indicate a broader approach where an agreement was entered into or relied on to fulfil directive obligations. The substantive issue was difficult and genuinely arguable, so an ECJ reference was appropriate.
3. Emanation of the State. The guidance in Foster v British Gas [1990] ECR I-3313 concerned bodies made responsible by the State for a public service, under State control, and possessing special powers beyond ordinary private-law rules. The national court ordinarily determines whether a particular body satisfies that guidance. Earlier conclusions that the MIB was not an emanation of the State, including Byrne v MIB [2008] 2 WLR 234, were called into question by later ECJ material and by the Irish decision in Farrell v Whitty and the MIBI [2008] IEHC 124. Further ECJ guidance would assist.
4. Necessity and wider importance. The questions concerned the MIB’s liability, arose in other existing and potential proceedings, and were of general importance. It was sufficient that a favourable ECJ answer was genuinely arguable. The judge could not be criticised for making the reference, although the form and precise terms of the order remained to be settled. Lord Justice Carnwath and Lord Justice Wilson agreed with Waller LJ.

1. Court of Appeal (Civil Division) dismissed the MIB’s appeal and upheld the need to proceed with an ECJ reference, subject to settling its form and terms.
2. Canterbury County Court Judge Mitchell, in a judgment handed down on 22 August 2007, considered a reference necessary and made an order referring questions to the ECJ. Permission to appeal was granted.