United States of America v Nolan

Where a proposed reference to the Court of Justice may become unnecessary if a remitted issue disposes of the litigation, the court may adopt a twin-track approach. It may make the reference immediately while permitting the remitted issue to proceed concurrently, provided the tribunal is willing to do so. The possibility of additional costs does not necessarily justify a stay. A reference should be framed around the question requiring an answer to resolve the litigation. A concise question may be preferable to multiple questions addressing hypothetical factual situations.

The United States of America appealed from decisions of the Employment Appeal Tribunal in cases UKEAT/0328/08/CEA and UKEAT/0329/08/CEA. The Court of Appeal had already upheld remission of the employee representative issue to the employment tribunal and had decided to make a reference to the Court of Justice.

The issue at this hearing was whether the reference should be stayed pending determination of the remitted issue. The court also considered the appropriate form of the reference.

1. Stay. The application to stay the proposed reference was refused. The court favoured a twin-track procedure under which the reference would be made immediately while the employment tribunal considered the remitted employee representative issue, subject to the tribunal being willing to proceed.
2. The remitted issue might determine the litigation in favour of the United States, making the reference unnecessary. The court relied on Rosa Garcia Blanco v Instituto Nacional de la Seguridad Social (Case C-225/02) as indicating that the Court of Justice would not continue with a reference if the underlying litigation had already been disposed of. Any additional costs arising from concurrent proceedings did not outweigh the advantages of the proposed approach.
3. The Court of Appeal could not strictly direct the employment tribunal to proceed with the remitted matter. It could, however, see no reason why the tribunal should not do so.
4. Form of reference. The reference should seek the answer needed to dispose of the litigation. The concise question proposed by counsel for the United States was preferred to a fuller series of questions covering different factual situations, since the Court of Justice would have the benefit of the Court of Appeal’s judgment.

• Court of Appeal (Civil Division): Following an earlier judgment delivered on 9 November 2010, the court refused to stay the proposed reference to the Court of Justice and approved the proposed concise form of reference.
• Employment Appeal Tribunal: In cases UKEAT/0328/08/CEA and UKEAT/0329/08/CEA, the employee representative issue had been remitted to the employment tribunal. The Court of Appeal agreed with and upheld that remission.