Mark John Wilson & Anor. v Michael Bernard McNamara

A binding CJEU ruling must receive full effect on questions of EU law, but it does not require a national court to determine every remaining factual or procedural issue. Subject to equivalence and effectiveness, national procedural law governs the further conduct of the case. A party trying a preliminary issue must normally advance its whole case on that issue, including any available justification for an alleged restriction on free movement. Where the party leaves that argument unraised, the court may refuse a very late amendment or application to reopen the issue. An appellate court should not interfere with that case-management decision unless it falls outside the generous ambit of reasonable disagreement.

The respondent was adjudicated bankrupt in England. The issue was whether his entitlement under an Irish pension scheme formed part of his bankruptcy estate under sections 11 and 12 of the Welfare Reform and Pensions Act 1999. On a preliminary issue, the High Court referred questions concerning article 49 TFEU to the CJEU. The CJEU held that the relevant UK legislation was indirectly discriminatory unless objectively justified and proportionate, leaving those matters for the national court.

On the return of the case, the High Court refused the respondent’s trustees permission to argue objective justification: [2022] EWHC 243 (Ch). The trustees appealed, contending that the CJEU’s ruling required the issue to be decided, that they were entitled to raise it as of right, or that the refusal was an error of discretion.

1. Appeal dismissed. The CJEU’s ruling was binding in its entirety because the reference pre-dated the United Kingdom’s final withdrawal from the EU. The ruling in the dispositif had to be read with the reasons. It bound the national court as to EU law, but the CJEU had no jurisdiction to decide national facts or prescribe national procedure.
2. Statements that matters were for the referring court to ascertain delineated the respective competences of the CJEU and the national court. They did not compel the High Court to investigate objective justification after it had made a procedural ruling which meant that issue was not before it. Peterbroeck concerned a procedural rule which prevented any court from considering a question of EU-law compatibility. Here the reference had been made, and the trustees could have raised justification earlier.
3. National procedural law governs the further conduct of the dispute, subject to EU principles. The preliminary issue was a trial of the issue identified on agreed or assumed facts. Since indirect discrimination is capable in principle of objective justification, the trustees knew, or should have known, that justification was a potential route to the answer. Their choice to run only the primary route meant that they were not entitled to raise justification as of right.
4. The refusal of permission was an unimpeachable exercise of case-management discretion. The issue had not been raised at the 2019 hearing; reopening it nearly two years later would require a new factual inquiry and substantial further evidence. The overriding objective was considered. The merits of the proposed defence were generally irrelevant to case management, absent a case fit for summary judgment. The judgment did not determine that justification could never succeed, and future litigants remained able to argue it.
5. The remaining ground concerning relief was contingent on success on another ground and was not pursued. The appeal was dismissed.

• Court of Appeal (Civil Division): Appeal dismissed. The court upheld the refusal of permission to raise objective justification, substantially for the reasons given below.
• CJEU: The reference was answered in BJ and OV v Mrs M & others, the same litigation, with the ruling reported at [2022] 1 WLR 3633.
• High Court, Business and Property Courts, Insolvency and Companies List: The first hearing produced a reference to the CJEU: [2020] EWHC 98 (Ch) . On the return of the case, the court refused permission to argue objective justification: [2022] EWHC 243 (Ch).