THE HIGH COURT AND NATIONAL UNIVERSITY OF IRELAND, DUBLIN AKA UNIVERSITY COLLEGE DUBLIN (UCD) AND

Transcription

1 High Court Appeal Number CA Circuit Court Record Number 2006/07275 THE HIGH COURT BETWEEN PATRICK KELLY AND PLAINTIFF NATIONAL UNIVERSITY OF IRELAND, DUBLIN AKA UNIVERSITY COLLEGE DUBLIN (UCD) AND DEFENDANT THE DIRECTOR OF THE EQUALITY TRIBUNAL NOTICE PARTY LEGAL SUBMISSION OF THE PLAINTIFF-APPELLANT (MARCH 22, 2008) PATRICK KELLY 11 Deansrath Avenue Clondalkin Dublin 22

2 1. In her undated Written Submissions on behalf of the Defendant, which were first produced at the High Court on April 23, 2007 (during the hearing of the appeal, when I raised before the High Court three questions on the interpretation of acts of the institutions of the Community) Ms Marguerite Bolger, the Defendant s lead barrister, claimed that it cannot be said that a decision on the questions [i.e. the questions I raised on the interpretation of acts of the institutions of the Community ] is necessary to enable the national court or tribunal to give judgment (paragraph 2.2) because, she said, the High Court is not the court which will ultimately have to give the judgment to which the putative reference relates, the plaintiff s action being a Circuit Court action under the Equal Status Act 2000 (paragraph 3.1). 2. In her oral submissions to the High Court regarding the question[s] I raised on the interpretation of acts of the institutions of the Community Ms Bolger continually indeed, at every opportunity termed these proceedings (i.e. my appeal to the High Court under Part IV of the Courts of Justice Act 1936) interlocutory. Because these proceedings are interlocutory proceedings Article 234(3) EC does not apply, she argued. 3. In the Concise Oxford English Dictionary (11 th ed., p.741) the adjective interlocutory is defined as follows: (of a decree or judgement) given provisionally during the course of a legal action [emphasis added]. 4. The decision of the High Court as to whether or not I am entitled, under Community law, to details of the qualifications 1 of the other people who applied to join the Masters in Social Science (Social Work) Mode A course at University College Dublin (UCD) in 2002 will not be an interlocutory decision. Whatever decision the High Court makes will be binding on the Circuit Court. The issue cannot be re-opened or re-litigated in the Circuit Court. 5. In AIG Europe (Ireland) Ltd v. Faraday Capital Ltd [2006] EWHC 2707 (Comm) (October 31, 2006) the High Court of England held, at paragraph 24: 1 In Case Case C-255/01, Panagiotis Markopoulos and Others v. Ypourgos Anaptyxis and Soma Orkoton Elegkton (October 7, 2004) the European Court of Justice held, at paragraph 54, that because the word qualifications is not defined in the Eighth Directive [i.e. Directive 84/253/EEC]...use of that word [i.e. the word qualifications] allows the competent authorities of the host Member State to make an overall assessment of the abilities of the person concerned.... The word was defined by the European Court of Justice to mean overall abilities. 1

3 the doctrine of stare decisis has more to it than the imposition of a requirement that a lower court is bound to follow a higher court s decision. Our system of precedent requires courts to achieve a stable and common approach to legal problems and this is particularly true of commercial disputes where the parties are looking for certainty. Whether the Dornoch 2 case is, strictly binding, I would follow its conclusions in any event: not just because they are, I think, correct, but also because stability and consistency require or demand that I should. 6. The Circuit Court is bound to follow the High Court s decision. [T]he doctrine of stare decisis imposes this requirement. Actually, it does more than just that: it requires courts to achieve a stable and common approach to legal problems. 7. In Case 107/76, Hoffmann-La Roche AG v. Centrafarm Vertriebsgesellschaft Pharmazeutischer Erzeugnisse mbh [1977] ECR 957 was asked to decide if the third paragraph of Article 177 [now Article 234 EC] required a national court or tribunal to refer to the Court [of Justice] a question of interpretation or of validity mentioned in that Article when the question is raised in interlocutory proceedings for an interim order where no judicial remedy is available against the decision to be taken in the context of those proceedings. 8. As the European Court of Justice reiterated at paragraph 5 of its judgement, the particular objective of the third paragraph of Article 234 EC is to prevent a body of national case-law not in accord with the rules of Community law from coming into existence in any Member State. 9. The Court held, at paragraph 6, that a national court or tribunal is not required under Article 234(3) EC to refer to the Court [of Justice] a question of interpretation or of validity mentioned in that Article [i.e. Article 234 EC] when the question is raised in interlocutory proceedings for an interim order where no judicial remedy is available against the decision to be taken in the context of those proceedings provided that each of the parties is entitled to institute proceedings or to require proceedings to be instituted on the substance of the case and that during such proceedings the question provisionally decided in the summary proceedings may be re-examined and may be the subject of a reference to the Court [of Justice] under Article 177 [now Article 234 EC] [emphasis added]. 2 Royal & Sun Alliance Plc v. Dornoch [2005] 1 Lloyd s Law Reports IR page 544. English Court of Appeal. 2

4 10. If the question provisionally decided in the summary proceedings cannot be reexamined during the proceedings on the substance of the case Article 234(3) EC require[s] a national court or tribunal to refer to the Court [of Justice] a question raised in interlocutory proceedings for an interim order where no judicial remedy is available against the decision to be taken in the context of those [interlocutory] proceedings. 11. The question[s] I have raised in the High Court in the course of the proceedings under Part IV of the Courts of Justice Act 1936 and Order 61 of the Rules of the Superior Courts are questions that cannot be re-examined during the proceedings on the substance of the case, i.e. the appeal to the Circuit Court under Section 28(1) of the Equal Status Act That is if the High Court proceedings are adjudged interlocutory. But the question[s] decided in the High Court will not be provisionally decided (the decision(s) of the High Court will be binding on the Circuit Court) and the proceedings in the High Court under Part IV of the Courts of Justice Act 1936 cannot therefore be classed interlocutory. 13. Let us suppose, for a moment, that the judgement of the High Court were not binding on the Circuit Court. Would the High Court then be obliged to refer to the European Court of Justice the questions I have raised? The judgement of the European Court of Justice in Joined Cases 35/82 and 36/82, Morson and Jhanjan v. State of the Netherlands [1982] ECR 3723 provides the answer. 14. In Joined Cases 35/82 and 36/82, Morson and Jhanjan v. State of the Netherlands [1982] ECR 3723 the Supreme Court of the Netherlands submitted the following question to the European Court of Justice for a preliminary ruling : On an application for an interlocutory injunction, is the Hoge Raad [i.e. the Supreme Court of the Netherlands] obliged, pursuant to the third paragraph of Article 177 [now Article 234] when a question of interpretation within the meaning of the first paragraph of that Article is raised in an appeal on a point of law, to refer the matter to the Court of Justice for a preliminary ruling, having regard to the fact that a judgment of the Hoge Raad delivered on an application for an interlocutory injunction is 3

5 not binding on a court which later has to deal with the substance of the case?. 15. The European Court of Justice held, at paragraph 10: the third paragraph of Article 177 [now Article 234] must be interpreted as meaning that a national court or tribunal against whose decisions there is no judicial remedy under national law is not required to refer to the Court [of Justice] a question of interpretation as referred to in the first paragraph of that article if the question is raised in interlocutory proceedings and the decision to be taken is not binding on the court or tribunal which later has to deal with the substance of the case, provided that each of the parties is entitled to institute proceedings or to require proceedings to be instituted on the substance of the case even before the courts or tribunals of another jurisdictional system and that during such proceedings any question of Community law provisionally decided in the summary proceedings may be re-examined and be the subject of a reference to the Court [of Justice] under Article 177 [now Article 234]. 16. If the question of Community law that has to be provisionally decided in the interlocutory proceedings cannot be re-examined during the proceedings of the substance of the case the national court or tribunal dealing with the interlocutory proceedings is required to refer the question to the European Court of Justice even if the decision to be taken is not binding on the court or tribunal which later has to deal with the substance of the case. 17. In Case C-96/04, Standesamt Stadt Niebüll (April 27, 2006) the European Court of Justice explained, at paragraph 13: a national court may refer a question to the Court [of Justice] only if there is a case pending before it and if it is called upon to give judgment in proceedings intended to lead to a decision of a judicial nature [emphasis added]. 18. If my appeal were no longer pending before the High Court the High Court could not refer a question to the Court [of Justice]. The question or question[s] can only be referred while the case is pending before the High Court. 4

6 19. Ms Bolger claimed, in her Written Submissions on behalf of the Defendant, that the High Court is not the appropriate court to make the reference being sought (paragraph 3.1). Merely quoting paragraphs 14 and 15 of the judgement of the European Court of Justice in Case C-99/00, Lyckeskog [2002] ECR I 4839 is sufficient to disprove her claim: The obligation on national courts against whose decisions there is no judicial remedy to refer a question to the Court [of Justice] for a preliminary ruling has its basis in the cooperation established, in order to ensure the proper application and uniform interpretation of Community law in all the Member States, between national courts, as courts responsible for applying Community law, and the Court [of Justice]. That obligation is in particular designed to prevent a body of national case-law that is not in accordance with the rules of Community law from coming into existence in any Member State (see, inter alia, Hoffmann-La Roche [1977] ECR 957, paragraph 5, and Case C-337/95 Parfums Christian Dior [1997] ECR I-6013, paragraph 25). That objective is secured when, subject to the limits accepted by the Court of Justice (CILFIT), supreme courts are bound by this obligation to refer (Parfums Christian Dior, cited above) as is any other national court or tribunal against whose decisions there is no judicial remedy under national law (Joined Cases 28/62, 29/62 and 30/62 Da Costa en Schaake [1963] ECR 31) [emphasis added]. 20. In an article published in 2004 in the journal Common Market Law Review, Peter Wattel, Advocate General in the Netherlands Hoge Raad [Supreme Court] and professor at the Amsterdam Centre for International Law (ACIL) of the University of Amsterdam explained (Wattel, 2004, p ): If the claims Court does not refer, it will in case of EC Law conferring rights on individuals expose its Member State to Köbler liability on the basis of a manifest infringement of its CILFIT obligation to refer questions, in combination with the infringement of the EC right invoked by the individual. 21. The High Court must refer to the European Court of Justice the questions I have raised. Article 234(3) EC obliges it to do so. I again call upon it to do so. 5

7 22. I wish to record, in passing, that I have still not received a copy of the judgement delivered by Mr Justice McKechnie on March 14, 2008 despite being promised on March 14, 2008 that a copy of that judgement would be ed to me. I have yet to receive a copy of the judgement in any form. ALL OF WHICH IS RESPECTFULLY SUBMITTED Patrick Kelly Plaintiff-Appellant Filed by and on behalf of the Plaintiff-Appellant At the Central Office of the High Court 6