West Law Report

Awaiting European outcome

From The TimesJune 27, 2008

Awaiting European outcome
Court of Appeal
Published June 27, 2008
Johns v Solent SD Ltd

Where there was a reasonable chance that the Court of Justice of the European Communities might decide a case pending before it so as to give a plaintiff a good claim in the English courts, the sensible answer was to stay the hearing of the claimant’s case so that it would not be snuffed out before the European Court decision became known.

The Court of Appeal (Lord Justice Pill, Lord Justice Keene and Lady Justice Smith) so held on June 12, 2008, dismissing an appeal by the employer, Solent SD Ltd, from a decision of Mr Justice Nelson in the Employment Appeal Tribunal staying a claim by Anna Johns for age discrimination related to her compulsory retirement at age 65. The judge imposed the stay to await the outcome in the European Court of R (National Council for Ageing) v Secretary of State for Trade and Industry, known as the Heyday case.

LADY JUSTICE SMITH said there was no dispute that the claim would fail if decided on current English law. The tribunal chairman had purported to determine the prospects of the Heyday case on the basis of the Advocate-General’s opinion in Palacios de la Villa v Cortefiel Servicios SA (Case C-411/05) ([2008] All ER (C) 249). But the European Court had come to different conclusions from the Advocate-General in that case.

Mr Justice Nelson had concluded that Heyday did have reasonable prospects of success. In the circumstances, the only sensible answer was that there should be a stay in the instant proceedings.

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