England and Wales Court of Appeal (Civil Division) Decisions

		Royal Courts of Justice                               Strand London, WC2A 2LL
		9 November 2015

LORD JUSTICE LEWISON:

1. The issue on these appeals is whether the appellants were in time in submitting their claims to the Employment Tribunal complaining of unlawful discrimination under the Part Time Workers Directive. That, in turn, depends on whether their pension rights are definitively acquired at the time of their service or only when they retired; which is a question of EU law.
2. In O'Brien v Ministry of Justice [2015] EWCA Civ 1000, decided on 6 October 2015, this court held that a worker definitively requires pension rights attributable to a particular period of days during that period of service and does so by reference to the law applicable during that period of service. The decision in O'Brien is equally applicable to these appeals with the consequence that the appellant's applications were out of time.
3. The parties to these appeals therefore agree that at least in this court the appeals must fail, although it is important to say that the appellants are not consenting to the dismissal of their appeals. They are submitting to judgment. It is however agreed that because we have not heard extensive argument and the appellants have submitted to judgment, there should be no order for costs of the appeals in the Miller case.
4. The appellants, that is to say both Mr O'Brien and the Miller appellants seek permission to appeal to the Supreme Court. One of the issues that arose in O'Brien was whether this court should have made a reference to the European Court of Justice. We have decided that we would not do so because in our view, law was acte claire.
5. Since we took the view that there was no real doubt about what the law is, it follows, in my judgment, that we should not give permission to appeal to the Supreme Court simply for the purpose of making such a reference. Mr Allen QC has argued that we applied too lax a test by reference to the opinion of Advocate General Wahl in a case called TA van Dijk, EU:C:2015:564. However, I do not consider that we applied anything other than the standard test of what is acte clair.
6. The law was recently restated by Advocate General Bot in Ferreira da Silva v Portuguese State, EU:C:2015:565 particularly at paragraphs 91 and 92 of his opinion. In paragraph 91 he said that no reference needs to be made if the correct application of EU law is so obvious as to leave no scope for any reasonable doubt and in paragraph 92 he emphasised that the case law,

"(92) Gives the national court sole responsibility for determining whether the correct application of EU law is so obvious as to leave no scope for any reasonable doubt and for deciding, as a result, to refrain from referring to the Court of Justice a question concerning the interpretation of EU law which has been raised before it."

7. The fact is that in the O'Brien case even though there is a point of public importance, the point has been decided now twice against the appellants on appeal, once by the Employment Appeal Tribunal and again by this court. It follows, in my judgment, that we should not grant permission to appeal to the Supreme Court. I should also make the point that this court is not the final Court of Appeal and so, there is still an opportunity for the appellants to attempt to persuade the Supreme Court to make a reference itself.
8. We have received written submissions about the costs in the O'Brien appeal. In essence, we were invited to depart from the usual order that the unsuccessful party should pay for the successful party's costs. The main reasons underlying that submission is that the year 2000 point could have been raised earlier and should have been raised earlier and that if it had, costs would have been saved. It is also said that the appeal was from a non-costs jurisdiction. However, the rules permit an application to be made to this court for a limitation on costs and no such application was made. I do not find either of the arguments persuasive, I would therefore order Mr O'Brien to pay the Secretary of State's costs of the appeal on the standard basis.
9. I should also perhaps add that in Walker v Innospec heard together with the O'Brien appeal, we also refused permission to appeal to the Supreme Court and order Mr Walker to pay Innospec's costs.

MASTER OF THE ROLLS

10. I agree.

LORD JUSTICE UNDERHILL

11. I also agree.

Order: Application dismissed