England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
BIRMINGHAM DISTRICT REGISTRY
MERCANTILE LIST
(Her Honour Judge Alton)

		Royal Courts of Justice Strand London WC2 Friday 8th June, 2001

1. LORD JUSTICE CLARKE: This is an application for a stay of a hearing on quantum which is at present fixed for early September. I understand that the hearing is likely to take about three days. It follows therefore that it will involve not only three days of court time but also the expenditure of significant costs on the part of both parties.
2. The case is a somewhat unusual one. For the purposes of this application it is not necessary to recite the facts in any detail. The claimant, Mr Whitehead, was a commercial agent within the meaning of the Commercial Agents (Council Directive) Regulations 1993. He worked as a commercial agent for the defendant under a contract which the judge held expired by effluxion of time at midnight on 31st December 1997. He claims substantial sums of money under the 1993 Regulations. He claims compensation under regulation 17 amounting to some £400,000. He further claims commission under regulation 8 amounting to over £100,000. It follows that his total claim is in excess of £500,000. Both those heads of claim depend, as I understand it, upon the claimant establishing that the agency contract terminated within the meaning of the regulations, and in particular regulation 17. The judge held that a contract which comes to an end by effluxion of time has terminated within the meaning of the regulations.
3. The defendant was refused permission to appeal to this court by the judge, but I subsequently granted permission on paper on the 26th March 2001. The reasons which I gave which are set out on the form are defective and should have read as follows:

"It appears to me that the judge's construction of the regulations is correct, but the question whether the reference to `termination of the agency contract' in article 17 of the regulations (and article 17 of the directive) includes the expiry of the contract by effluxion of time is of some general importance, and I have granted permission principally to enable the appellant to argue before the full court that the issue should be referred to the Court of Justice under article 234 of the EC Treaty."

4. It is, I understand it, common ground that if there is a reference to the European Court, then the question to be referred will essentially be the question which I have just formulated.
5. The appeal is, I understand, fixed to be heard on 22nd or 23rd November. I enquired whether the appeal could be heard in July, but was told that it could only be heard if other cases were removed from the list which did not seem to me to be appropriate.
6. On the hearing of the appeal the defendant proposes to invite the court to adjourn the appeal pending a reference of that question to the Court of Justice. The respondent intends to resist that application. If the application fails - and perhaps in any event the court will be asked to consider the true construction of article 17 of the regulations. The court may hold that the judge was right and that the matter should not be referred to the Court of Justice. In that event, the issues of quantum between the parties will have to be tried. If they are not tried in September of this year then, as I understand a letter written to the court by the judge, Her Honour Judge Alton, on 1st May, it will not be possible to relist it before the Mercantile Court in Birmingham until after February 2002. However, although her letter does not say so expressly, it seems to me to be a reasonable inference that if dates were fixed now it would be possible to re-fix it reasonably soon after February 2002.
7. Another possibility is that the appeal will be allowed. In that event if the hearing on quantum has already taken place in September not only will three days of court time have been wasted, but also significant wasted costs will have been expended. Not surprisingly, the claimant is not willing to undertake to pay the costs of that hearing if the appeal should be allowed. It follows that if the appeal is allowed there is a significant risk that the defendants will have incurred the costs of the quantum hearing which will have been wasted. The question is whether in all these circumstances the right course is to stay the quantum hearing pending the hearing of the appeal or to allow the quantum hearing to go ahead.
8. Problems of this kind are never easy. I quite understand the claimant's view that the quantum hearing should go ahead as soon as possible. He naturally wishes to have the whole matter resolved, if possible in his favour, at the earliest possible moment. On the other hand, I have to hold a fair balance between the parties.
9. The problem is further bedevilled by this consideration. The defendant submits that there should be no quantum hearing at all unless and until a question or questions have been referred to the Court of Justice relevant to the calculation of or approach to the calculation of quantum under the regulations. Mr Randolph submits that it does not make sense for the court to make findings of fact in a vacuum, but that the court at first instance should only determine the facts once the correct questions have been authoritatively determined by the Court of Justice.
10. Mr Patchett-Joyce on the other hand observes that it was pointed out to the appellant some considerable time ago that no attempt has been made to formulate the relevant questions. He invites the court to infer that the appellant is not able to formulate an appropriate question. In short, it is I think submitted that the suggestion of a reference is a form of delaying tactic.
11. I see the force of Mr Patchett-Joyce's submission and it appears to me that it is of importance that before any court considers the possibility of a reference or indeed Mr Randolph's submission that a trial of quantum on the facts should not proceed until after a reference the question should be properly formulated.
12. I have reached the conclusion that the most sensible course would be for the appeal to be heard first. If the appeal is allowed and the court takes a firm view in the appellant's favour on the true construction of the regulations, the action will fail and the quantum hearing will not be necessary. Equally, if the appeal is dismissed, the quantum hearing can proceed, hopefully in or shortly after February 2002, and the respondents will be compensated for the delay by an appropriate award of interest in respect of the period from September to February or whenever the quantum is determined.
13. The third possibility is that this court decides to refer the matter to the Court of Justice. In that event the question raised by Mr Randolph will have to be determined. When I granted permission to appeal on paper I indicated a view somewhat indistinctly, which I subsequently clarified, to this effect. It seemed to me then and it seems to me now that if there is to be a reference to the Court of Justice on liability, any reference to the Court of Justice on quantum must take place at the same time. As I understand it both parties accept that. Any other possibility would lead to inordinate and unacceptable delay and expense. It follows that if this court decides to refer the issue of liability to the Court of Justice, consideration will have to be given then to the question: how should quantum proceed?
14. At present it seems to me that there is much to be said for Mr Patchett-Joyce's submission that it is never satisfactory to refer questions of principle in a vacuum and that it is important first to ascertain the facts. However, I recognise that, as in any case, all may depend upon the circumstances. Thus, the question may be such that this court, or indeed a court of first instance, might conclude that it would be appropriate to have the question of principle determined before the facts were found. I do not think that I am in a position to decide that question today. I do not think that it is necessary to decide the question today. It is a matter which should I think be discussed between the parties between now and November, and should be raised before this court if the court should refer the question of liability to the Court of Justice.
15. For these reasons, I accede to the application that the quantum hearing should be stayed at first instance pending determination of the appeal on liability. But I propose to give some further directions so that the question of what should happen if there is a reference of any question relevant to liability ordered by this court, I propose to direct that within a period to be discussed in a moment the appellant should formulate any question or questions which it wishes to have referred to the Court of Justice on quantum before any trial of the issue of quantum. It appears to me that the appellant should set out in a letter the precise question or questions which it would wish to have referred and should state briefly in the same letter the reasons why it submits that that question or those questions should be referred before any determination on quantum. It seems to me that it would be sensible to direct also that the respondent's solicitors should reply within some reasonable period after that setting out clearly and succinctly their response, so that the matter can be resolved in November.
ORDER: Application for a stay of the hearing on quantum pending determination of the appeal on liability granted; the appellant to set out in a letter the precise question which it would wish to have referred and brief reasons why he submits that that question should be referred before any determination on quantum within 14 days; the respondent's solicitors should reply within 14 days thereafter setting out clearly and succinctly their response; costs reserved. (Order not part of approved judgment)