[speaker001:] At to page nineteen my Lord of the transcript... passage that begins [reading] my reading of this judgment [] down to the bottom of that paragraph at letter G, so from B to G on page nineteen my Lord...
[speaker002:] Yes
[speaker001:] Now my Lord, er Lord Justice er agreed with er Lord Justice that's at twenty A, Lord Justice also agreed but er added er some further er thoughts on the er on the issue er his conclusion er is summarized of page twenty two, paragraph G of the er transcript...
[speaker002:] yes, yes
[speaker001:] now my Lord, your Lordship would of seen from the case and now from the continental television case, both in the divisional court and in the court of appeal, that where a reference is to be made the court that is marking the reference, if, what is sort to be done is either to challenge a British statute or in the case of er, er the red hot Dutch case, of course with the statute, er something which er it involves a ministerial decision, but in either of those instances the court has got to decide in the interim whether or not the statute or measure should remain in force and there is the priority of public policy as indicated in er Lord er speech referred to both in the divisional court and in the court of appeal in continental television in er maintaining the law in force and a, a bonus has to be faced by the person seeking discipline from the law to show us a sufficiently strong case to justify the er, er, the suspension of the law in the interim. My Lord... in making my main submissions to your Lordship, erm, I submitted and this is position that there is no distinction between public and private acts, in the British Rail Board both the act and the central fund byelaw should be taken as valid in the interim... if your Lordship is minded to make a reference, unless strong evidence of invalidity is, so your Lordship if you make a reference it needs to form a view as to the strength of the
[speaker002:] yes
[speaker001:] of the erm of the defendant's case
[speaker002:] well how would that how would that fit into the present context?, erm, we're assuming here that I haven't decided the er... European points or some of them in your favour
[speaker001:] yes my Lord
[speaker002:] or, or alternatively because I haven't, I have made this clear throughout, I come to the conclusion that the, the questions as posed erm or posed in any court which any one has yet suggested really can't, can't be answered or, or there are reasons for not answering at this stage whatever it may be
[speaker001:] yes my Lord
[speaker002:] in other words anything except a wholly favourable answer to your clients
[speaker001:] yes my Lord
[speaker002:] in effect, yes, well then erm just looking ahead in those circumstances erm, er... on, on the face of those issues er where do we go from there then?
[speaker001:] well my Lord er you know the Society is in your Lordships hands in terms of seeking to move matters forward, the Society is erm very anxious indeed and the reason your Lordship knows that the hiatus in recovery from central funds should be overcome, our primary case er is that er we can demonstrate to your Lordship that the European law defences on the preliminary issues should be answered in the Society's favour
[speaker002:] well yeah, yes,
[speaker001:] but should you have, should you have doubts about that my Lord then er what we urged your Lordship to do would be in your judgment er to include a consideration of the strength of the case er your Lordship is seized of the matter now, if your Lordship er considers that there are issues of law which require clarification from the European court of justice and in competition cases all the European court candid on references is to give guidance on questions of law, your Lordship identifies questions of law which need to be i which need to be resolved and you think that it is the most appropriate course to refer a question, then we would ask that your Lordship consider in the interim the position of the, the Lloyds Act clauses there are sort to be challenged by the defences because it will be
[speaker002:] yeah, yeah, well I, I see all that, then, what, what is it literally that you'd ask me to do, would you take out an application for judgement on order fourteen, would you be expecting me to give judgment or, or, what other courses do you expect, be expecting hoping would take?
[speaker001:] well my Lord one, one approach would be for er your Lordship to consider the matter in respect of er order fourteen A, er in terms of er the validity in the interim of the er Lloyds Act and the central fund byelaw... and that is a matter that your Lordship could, could deal with on the basis of a, an oral application....
[speaker002:] Yes, erm
[speaker001:] In short of having before your Lordship a very complicated er array of procedural options, er the, the view that has been taken by, my lead was the most appropriate er course was to come and argue the issue substantially and then in the light of what your Lordship rules thereafter to see the best way forward in terms of further procedural applications to your Lordship....
[speaker002:] Er is what you're saying, what, what you're saying apply equally erm spitting rather, if I sort information from it, I'm not quite sure what sort information I could seek from a commission, got any suggestions in that
[speaker001:] well my Lord you could seek, you can certainly seek information from the commission er concerning the state of the proceedings erm that the commission is looking at in respect of the
[speaker002:] mm
[speaker001:] er complaints that have been submitted, you can ask them er, erm for factual or legal information in accordance with er paragraphs er thir thirty seven to thirty nine of the guidelines which are in and er page eleven thirty eight to eleven thirty nine....
[speaker002:] mm... could we have the, do either of you have the experience of how long, how long this might take
[speaker001:] my Lord, it's a relatively new procedure
[speaker002:] mm
[speaker001:] and erm, but the Commission, I'm, I'm sure if your Lordship asked for expedition, would seek to deal with the matter expeditiously
[speaker002:] yeah
[speaker003:] My Lord in saying doing it in another case which is an arbitration
[speaker002:] mm
[speaker003:] and the Commission, expedite this matter for the best part of twelve months already
[speaker002:] yeah, mm
[speaker003:] it's the delay that we are concerned about my Lord
[speaker002:] well I can understand that, yes... well I, I, I, just say wasn't going to rule on this and I'm not in, not er convinced at the moment it would be appropriate to rule on it er as part of the er, in any judgment I gave, but it seemed to me quite important on reflection to, to hear the way what you were putting it
[speaker001:] my Lord there are two other grounds
[speaker002:] mm
[speaker001:] that I would also put it on in relation to your, to, to, to, to, to your Lordship and to considering the matter in interim, your Lordship has er, erm, er heard er the information that had been put forward er by the society, you have seen the er information about the position the commission has taken, your Lordship knows that the commission was informed about both the act and all the relevant byelaws in the present case, the precursored, the central fund byelaw was informally proved by the commission... Mrs... has sworn on affidavit that the society has never been given any indication that the matters in issue in the European Law Defence are contrary to competition rules... and your Lordship also has the answer by the commission to the European parliament... which is exhibited to Mrs affidavit and which I took your Lordship to earlier and of which judicial note can be taken by virtual section three, two of the European communities act, so my Lord we say that there is already a body of information which provides a basis if one has to consider what should be done in the interim of saying that in the interim the application of the act and the application for byelaws should be maintained, the third element my Lord is the intimate link between the recoveries of money for the central fund, er under the byelaw and the implementation of the United Kingdom's operations under directive seventy three, two, three, nine, we've been over this before my Lord erm, my Lord is, is aware of the intimate link er between the er recovery of monies to central fund, the maintenance solvency and the paying of policy holders. If I may my Lord there is an issue that was raised in my learned friends reply er which er was a new point er and where I do take issue with him and this concerns the issue of the relevance of the directive here... [whispering] [] the, the issue relating to er whether or not the er Lloyd's Act and the society have got any relevance in respect of the directive, his submission as I understood it, was that under article one, eight, nine the directive only addressed itself to states, to the British Government and that therefore the reliance on the directive by the society and in relation to the Lloyds Act was er a misconceived er reliance. My Lord I'd like to pass up to your Lordship a passage from er a leading text book written by Doctor Derek Q C and Alan dealing with European community law...
[speaker002:] mm, mm...
[speaker001:] and my Lord the... my Lord you'll see at the bottom of page sixty nine, this is the latest edition just published this summer my Lord, erm at the bottom of page sixty nine you have an extract from the European community treaty which er defines a directive and you will see my Lord says in terms that it leaves to the national authorities the choice of forms the methods, and then if my Lord could read the passage er under that on page seventy...
[speaker002:] yes
[speaker001:] my Lord the I rely on, on this passage and your Lordship has also got the full section dealing with er the nature of the directive er from er the er from the and book, I rely on this as er as indicating both the text of the, of the treaty itself and this passage from the learned authors as indicating that it is within the power of the United Kingdom...
[speaker002:] yes
[speaker001:] to choose the form and methods by which directive seventy three, two, three, nine should be given effect...
[speaker002:] yes
[speaker001:] and my Lord in relation the provisions of the Lloyd's Act and the er byelaws that are linked into solvency and the maintenance of er, er adequate fund and the payment of policy holders, in my submission constitute the implementation of that directive and those obligations er in, er relation to the society and that is perfectly compatible with community law er it is er the states er have variety of ways in which they can give effect er to community obligations.
[speaker002:] but you're saying in, in, in short, are you, that erm, that in the present instance erm the obligation was put on the United Kingdom government which has sort, it may have succeeded or not as the case maybe, discharge the obligation by in effect erm subject to the subsidiary provisions which you've both make reference and leaving it to to er regulate these matters
[speaker001:] that's right my Lord
[speaker002:] yes
[speaker001:] one has er, and Parliament of course did that within
[speaker002:] yes I follow, I follow that one
[speaker001:] mm
[speaker002:] does you, you might I suppose have another point on article five might you not?
[speaker001:] yes my Lord
[speaker002:] erm in namely that to the er, the duties put upon me
[speaker001:] my Lord there's a case which I want to bring your Lordships attention to in relate in relation to article five and this is the [whispering] [] my Lord there is a further case that I want to bring to your Lordships attention
[speaker002:] well, well tell me what er, it's
[speaker001:] it's it's the case
[speaker002:] from what, what proposition are you going to cite it?
[speaker001:] erm, this is a, a case which er deals with er the issue of the suspension of a measure based upon community law, whether a national court, when a measure has been based upon community law has power to suspend it, now my Lord the er issue in was erm involved er the er decision of er the German government er to give effect to er a community regulation in the sugar sector which er required er that levies should be er obtained from sugar companies, so it was a very direct er implementation of community law erm in that sense different to the matter before your Lordship, but we rely on it by analogy and in, in this case my Lord er you will see it's in the supplementary bundle of authorities, the extra bundle because, before your Lordship, in that case your Lordship will see er between paragraphs fifteen and thirty three er the er European court indicating that where a measure that has been based upon a community er, er law is challenged before a national court that the national court er should er only er engage in the er, er suspension of such a measure, erm if there is serious doubt er this is erm my Lord er at er paragraph twenty three of the case er and we say that er if you look at the criterions they are not dissimilar from those that have been adopted by the House of Lords as a matter of English law in the case
[speaker002:] mm
[speaker001:] we say that it is
[speaker002:] it sounds very much the same, the same line, I mean it'd be very odd if any court came to a conclusion that one put on a fanciful grounds erm suspend or ignore any, any er particular part of European law
[speaker001:] well that's right my Lord
[speaker002:] erm
[speaker001:] it's a serious matter
[speaker002:] yes but er
[speaker001:] and er and we say here that er in respect of directive seventy three, two, three, nine, contrary to what my learned friend has said, we say the passages in the V D S case
[speaker002:] yeah
[speaker001:] that I've already drawn your Lordships attention to say that erm the policy holders protection can be given effect to and er that er that er it does not have er the broad construction all encompassing construction that eighty five three is the only route that my learned friend has submitted
[speaker002:] yeah
[speaker001:] we also rely on the fact that the case that I've drawn to your Lordships attention yesterday, is this was the case in the supplementary bundle where your Lordship will recall that er on the issue of export credit guarantee
[speaker002:] yes, answer your point Mr it does, er, er this particular point, if you take the directive as I understand
[speaker001:] yes
[speaker002:] your suspicions, tell me if I've got it wrong, erm, it is that er... erm... are concerned through the chain of command that you've identified, let's say the United Kingdom in effect will be leaving it to to er, erm to deal with virtually all er aspects of solvency and protection of policy holders erm the subject to let us specifically prescribed by the er nineteen eighty two Insurance Act
[speaker001:] yes my Lord
[speaker002:] erm that's one path one could look, er down, the, the other part one could look down to one not is article five erm
[speaker001:] yes my Lord
[speaker002:] which is er, an obligation imposed on national course among others, erm... we need to read it to ourselves
[speaker001:] mm
[speaker002:] and your... point in this context, it, as I say the context in which I've asked you to address me, I suppose you would say, erm... given the matters are arguable or whatever the test is under those issues, er, nevertheless if you allow... the case that's been put up, erm, either by way of defence or by way of set up or by way of counter claim to impede the collection of funds, erm, then er you are not... then you are erm, erm taking a measure which could could, jeopardize the of the objectives of this treaty, er whereas I image you will say, or you might say, I don't know, erm, provided this doesn't impede the collection of central funds erm, in the meantime, if er the defendants wish to pursue their counterclaim to trial then er, there's nothing to prevent them from doing so
[speaker001:] my Lord our immediate concern is precisely the one you've identified, the collection of monies from central
[speaker002:] yeah
[speaker001:] fund, er and we say that er, er we hope your Lordship will be with us on the main issues, but if your not, we say there are very powerful reasons of English and community law including er the obligation on the court under article five, to ensure that the, er the, the trials some two years hence lasting some five weeks with all the expert evidence, my learned friend says will be necessary, should not in the interim have the effect of er frustrating er the operation of er apparently valid provisions in the United Kingdom statutes and the Lloyds Acts and byelaws, which er, are themselves measures that have been adopted so as to pursue the policy
[speaker002:] well, yeah, yeah, sorry to have to stop you again, but I think, with great respect one could, I think this point shorter, I'm only putting it back to make sure
[speaker001:] yes
[speaker002:] I understand it, is that erm, even given that this case is arguable, erm... alright let it be argued out, but if, if er, before it is argued out you're not entitled to collect money from a simple fund, you are frustrating the objectives of the directive
[speaker001:] yes my Lord
[speaker002:] and that is erm, erm... the way I suggest it to you, that would be directly contrary to article five
[speaker001:] yes my Lord...
[speaker002:] nothing to stop the defendants if they er wish to do so pursuing, preparing their counterclaim, erm, but the one thing it cannot do, even if the English law for example set- off would otherwise permit it, er is to, would, would be to prevent the, the collection of funds, because if the English law was set off and did do that, that would be running contrary to the directive
[speaker001:] mm
[speaker002:] and erm something which this court er presumably now doesn't have any jurisdiction to do otherwise it would be breach of article five
[speaker001:] er, yes my Lord, there's the prior point that we er, we would submit as indicated in the skeleton of the eleventh of November that on its true construction, erm the central fund byelaw, article ten in particular er gives rise to a payment of a specified sum, ascertain sum, payable forthwith on demand, it's rather like the example your Lordship gave of the Barclaycard or the cheque, if my learned friend is right
[speaker002:] well maybe that would be to English
[speaker001:] that's right,
[speaker002:] [cough] that would be to English law questions which we're certain of interest today
[speaker001:] no, no my Lord
[speaker002:] er on whether or not, erm... thi this erm European community defence could amount to a set-off er in the face of erm rule ten, the central of fund byelaw
[speaker001:] yes my Lord
[speaker002:] very interesting question to address
[speaker001:] yes
[speaker002:] as a matter of pure English law, at the moment I have no idea what the answer is
[speaker001:] yes my Lord
[speaker002:] erm... what I was putting to you was, do you, do you say that even if it would as a matter of pure English law, it is overridden by community law erm, er, er at least er, at least for the time being
[speaker001:] yes my Lord
[speaker002:] because er, if it wasn't, then there would be a frustration of directive seventy three, two, three, nine
[speaker001:] yes my Lord
[speaker002:] yeah, follow that, er in so far as it's, it's a counterclaim of course, erm, but then er... er unlike a, a set off, with the set off was established as a matter of English law, that, as far as the counterclaim is concerned, the course as I understand the rules is a very large measure of discretion, as to whether or not it er, it stays the claim on, or, erm, erm simply say no they'd be a judgment claim, immediate enforcement, and of, the counterclaim go off to trial
[speaker001:] yes my Lord
[speaker002:] yes
[speaker001:] my Lord I
[speaker002:] Tie the, I was just trying to tie the submission back to the, to the situation in which we are presently in
[speaker001:] yes my Lord
[speaker002:] yes
[speaker001:] my Lord I think it's also helpful to add that in the case erm, er your Lordship will find at er, maybe helpful if you could very briefly look at that judgment my Lord
[speaker002:] that's erm
[speaker001:] this is in the supplementary er, the, the small file
[speaker002:] that's your that is your blue bundle?
[speaker001:] it is my blue bundle my Lord
[speaker002:] yes
[speaker001:] er and
[speaker003:] tab
[speaker001:] my Lord I'm afraid I don't, I don't have a tab on my note
[speaker003:] what's it for? yes
[speaker001:] tab seven, four my Lord...
[speaker002:] yes
[speaker001:] and my Lord er in relation to this judgment er you've got the courts setting out the principal at page er one stroke five, forty, paragraph fourteen of the judgment... that's the principal of suspension... and it's then got it's conditions for suspension on the next page, paragraph twenty two
[speaker002:] I haven't actually got the, got page, it's rather a long case
[speaker001:] it is a long case my Lord...
[speaker002:] where?, where?
[speaker003:] five forty
[speaker001:] five forty
[speaker003:] paragraph
[speaker001:] erm paragraph fourteen... this is the principal of suspension...
[speaker002:] yes
[speaker001:] then overleaf my Lord you've got the conditions of suspension being indicated by the Court Justice...
[speaker002:] yes
[speaker001:] and my Lord you'll of noticed that in paragraph erm er thirty er they talk about the importance of taking the community interest into account and have proper guarantees and in this instance overleaf on page five, forty four, er they talk about the financial risk to the community, this of course was in the agricultural
[speaker002:] yes
[speaker001:] sector, a different sector, we're only relying on it by analogy they talk about the position of requiring the applicant by guarantee such as the deposit of money or other security, and my Lord our submission is, is very simple, er that, er the, the measure that are seeking to recover under are linked into solvency and the payment of policy holders, there's a community interest there in the directive, but if, er for any reason your Lordship feels there's a, a matter that needs to go on and further to, to, to a lengthy trial, that in the interim what would be compatible with the community object would be to ensure that the monies are recovered into settlement fund er so that the solvency and payment policy holders can continue
[speaker002:] yes
[speaker001:] but as we stress this is a subsidiary argument that we point
[speaker002:] yes, those are, those are the three grounds then on which you
[speaker001:] yes my Lord
[speaker002:] let's put it accurately, erm, it would be as presently advised submitting to me in effect events which
[speaker001:] yes my Lord
[speaker002:] possible then
[speaker001:] yes my Lord
[speaker002:] yes, well is there any more you want to say on that, is er, er, er, subject to Mr as you say of course, erm I just simply wanted to know erm so that I can have a, a, a look, erm at what on one view, erm might be the, the case, it might clear be the conclusion that you er incorrect in or partially incorrect or I was unable to answer all the questions er at this stage
[speaker001:] yes
[speaker002:] yes I think then
[speaker001:] my Lord I I do have some other observations on matters with Mr but it maybe more economical and effective on the new issues to wait until after Mr has addressed you and to deal with them at one point
[speaker002:] I would of thought so Mr yes, yes, erm, alright well Mr Mr erm... this is a rather odd exercise in a way and as you know my first thoughts were they were better to leave it to see what, how the, how the judgment came out of it, but erm, erm, I do regard the matter as er, as a, as a whole as of very considerable importance both to both sides of this case and erm, it did seem to me on considering it, er, from recovering from the dentist that er, an, an outline of erm
[speaker001:] oh yes
[speaker002:] what parties might erm be minded to
[speaker001:] yes
[speaker002:] contend and submit
[speaker001:] yes
[speaker002:] er in certain events might be helpful
[speaker001:] my Lord yes
[speaker002:] yes
[speaker001:] oh my Lord I think there are
[speaker002:] I think I'm not I think bound ny anything you have said this afternoon, it's just, if you're able to indication or you, if you want to keep your powder dry you're perfectly entitled to do so
[speaker001:] my Lord I'm happy to give an indication and
[speaker002:] yes
[speaker001:] with the caveat that, in the light of your Lordship's judgement we, we may wish to and change, erm first of all with regards to the commission, your Lord, your Lordships taken to
[speaker004:] Delimitis erm Delimitis was the case of one which the commissions noticed was grounded erm, your Lordship of course has the right to seek information to the commission to seek erm information as to the status of the proceedings, whether the commission have any market reports which maybe useful and so on
[speaker002:] mm
[speaker001:] your Lordship can't ask for information which maybe confidential to some other party for example what happened to the sugar case
[speaker002:] no, no I can't I can't answer, the answer to the questions either can I
[speaker001:] my Lord I don't think you can
[speaker002:] sadly no
[speaker001:] I, but, but er, but,b b but fortunately that's your Lordships task [LAUGHTER]
[speaker002:] er in a way
[speaker001:] erm does it
[speaker002:] so in, in a way, I mean I'm really almost be in this case be limited to simply saying can you give any idea when you're likely to, be able to produce anything other
[speaker001:] and, and they may very well my Lord, say well we have been watching with great interest what your Lordship has been doing
[speaker004:] [LAUGHTER]
[speaker002:] if I
[speaker001:] and when
[speaker002:] if I was them that's what precisely I'd do too, yeah
[speaker001:] my Lordship may wish to go back to the dentist
[speaker002:] mm
[speaker001:] erm and they may say
[speaker004:] [LAUGHTER]
[speaker002:] yes
[speaker001:] and they have that right to say well it's in the national court we're going to leave it there, erm, well so, so I think we would be reluctant to see it go to the commission erm Delimitis does say in the paragraph after what, after fifty three it says well your alternatives is to send it off to Luxembourg
[speaker002:] mm
[speaker001:] and that maybe something your Lordship may wish to consider, I'm a little bit baffled as to why my learned friend has gone for cases on interim measures, we're not seeking interim relief, we haven't sorted interim injunction, erm to suspend the validity of any particular measure that was the basis of all of his case
[speaker002:] well that maybe true, but I think it's working off an analogy on that, turning it the other way round and saying well erm if, if I got to the stage of erm, well possibly even seeking some information from the commission, well certainly if I gave you a conclusion for example, that it should be referred, erm and I think again even if I came to the conclusion that I should neither want, er there's no point in seeking information from the Commission, nor should I refer it, or at least refer to the stage erm what his clients would be saying should be done in the interim and what he says in effect, for the reason he's outlined is, er that we should proceed on the basis of erm the validity of the act erm and of the byelaws
[speaker001:] mm, but my Lord that can I take that
[speaker002:] and, and then following through the suggestion I've put to him, erm, erm on one scenario at least to, it could even you, erm perfectly erm able to pursue your counterclaim
[speaker001:] mm, mm
[speaker002:] but not to use it by way of fending off calls for central fund money
[speaker001:] mm
[speaker002:] that again is the same expression as, that is Mr bottom line
[speaker001:] mm
[speaker002:] er he wants money coming in to the central fund er if has in two years time to face a, a trial, these allegations so be it, but meanwhile he wants the money to come in to the central fund for the reason he's outlined
[speaker001:] well let me take, take that stage by stage
[speaker002:] mm
[speaker001:] first of all if there's a reference, no question of validity arises, what would happen is proceedings are stayed, subject to turns that your Lordship may direct or order and then
[speaker002:] is that, is that
[speaker001:] that's what happens
[speaker002:] well is it is what happens is it what's bound to happen?
[speaker001:] no my Lord no, my Lord that is what prima facie happens, I mean my Lordship
[speaker002:] well is it the case or I mean, or, or, obviously I stayed it, erm
[speaker001:] well there was nothing left which wouldn't
[speaker002:] there was no point in doing anything else, no
[speaker001:] no my Lord that's right, but, but, that doesn't mean to say that if your Lordship didn't stayed there would be any, if your Lordship did or didn't stayed or any part of it doesn't compute a validity of section fourteen until one's got a judgment saying, it's bad for example, I mean that's what we're arguing about until such and the
[speaker002:] well that's, that's right, you're quite right Mr that's why I then, I then put Mr points in the context of where we've got to
[speaker001:] mm
[speaker002:] because er, if he, if he didn't get a clean win on these
[speaker001:] my Lord
[speaker002:] points if he didn't I think that's only the time a problem arises
[speaker001:] yes
[speaker002:] erm... that the question then arises are you, are you er able put the matter up as a, as a defence as a set off or as a counterclaim with a stay of execution on the claim
[speaker001:] my Lord erm... first of all if your Lordship stayed the counterclaim your Lordship would be staying the claim under article eighty five and your Lordship would be denying the direct effect of article eighty five and of course
[speaker002:] no, no, no, no no, no stay, no stay of the counterclaim
[speaker001:] well my Lord, yes the stay of the counterclaim as a set off, that would then be denying article eighty five as a shield... well of course it wouldn't undermine the defences based upon article eighty five per se, the other ways, I mean the set off is simply one way in which the defence arises, it arises in three other ways as your Lordship seems to have an opinion, security or set off is simply one of the ways the defence, but it's not the only defence, so to simply state that part of the defence would not get the, would not mean that the article eighty five defence erm, er, evaporated in any way shape or form, the whole defence would have to be stayed so that there was none, no defence left, a defence on article eighty five
[speaker002:] there are incidentally I think bits of, even there is a duty of care isn't there which, there's duties floating around in your defence somewhere
[speaker001:] er yes and co yes my Lord there is of course a great deal more in respective
[speaker002:] although I suspect there's, there's what you're gonna stand on
[speaker001:] they, er, they may well my Lord
[speaker002:] mm which have to be, er, er I'd heard it's round about January sometime is that right?
[speaker001:] February the twenty eighth
[speaker002:] is it?
[speaker001:] February the twenty eighth, end of February, yeah, my Lord so of course erm staying the counterclaim as a set off wouldn't really progress much further because after eighty five, I mean that's simply a subsidiary way in which the defence arises, article eighty five arises primarily because we say underlying the arrangements are void and you're enforcing something, which is void and you can't do it, that's not a set off claim, but your Lordship I mean, my Lord that's why that doesn't really get them any further, my Lord they've always had outstanding, which they've never pursued er for order fourteen so they can always ti try as they said they will for the other erm, erm preemptive attacks upon us
[speaker002:] mm
[speaker001:] erm strike out, interim payment, order fourteen er itself, there's always still available to them, erm that the other side of the coin is if they get their money and of course they're going to be threatening bankruptcy for some four thousand odd Names, I mean that's, that's equally devastating to individuals, erm my Lord, one would be into a type of argument on balance of convenience if we were at this stage, one would be considering the bankruptcy of the names, whether they have the funds to pay, even if judgment is given against them because vast majority don't and what would be the point of giving judgment, this order fourteen cases saying one shouldn't do it in those circumstances, what if the names are right, will they get the money back, will they get a cross undertaking damages and pre er, er and to what extent do now have the funds, to what extent will it actually effect their business in the light of of
[speaker002:] mm
[speaker001:] the state of the premium trust funds, these are the sorts of consideration one would need to take into account, er a no doubt they would, they'd need to be argued fully at a, at a later stage, but the only question here is, if your Lordship refers and there's going to be some delay, well, erm, I was trying to think of an analogous case er and the case which went to the European court at the beginning of last year had consequences which were potentially far more profound than this case is, it was the Case concerned the application of equal pay principles to pensions
[speaker002:] mm
[speaker001:] and er if it was applied retroactively the er estimates which were put for the European court
[speaker002:] yes
[speaker001:] was that it would er have implications in the United Kingdom amounted to some sixty billion and the attorney general came to Luxembourg to tell the court about the dire consequences, er your Lordship raised consequences in the context of an arguments under article five
[speaker002:] yes
[speaker001:] erm, my Lord, in relation to that erm and er is an example, the European court itself and only the European court has the power to limit the direct effect of the provision, they can say well it has direct effect in these circumstances prospectively, but not retroactively and only the European court, that court alone has that power, all other courts, national courts must, my Lord this is your duty under article five I would submit to enforce article eighty five and three F
[speaker002:] yeah, er, well I follow that but the argument would go, er the article
[speaker001:] my Lord
[speaker002:] that nobody was, nobody was in the business of not enforcing those, erm, but the only way I could erm... fulfil, the obligations arising out of the treaty and abstain from measures that jeopardize the attainments of the objectives of the treaty, er was to allow the monies to be collected by er leaving you free to pursue your counterclaim, because then if you're right, erm then you would achieve everything you are entitled to achieve, by your counterclaim, that would achieve the objectives of article eighty five, erm whereas the collection of the money would achieve the objectives of the directive
[speaker001:] my Lord,
[speaker002:] that was the suggestion I put to er Mr, Mr erm
[speaker001:] my Lord, my Lord, two answers then adopted you're wrong they eloquently adopted them as my Lord, erm first of all article eighty five is direct my Lordship has heard all about that, to do that would be rendering excessively difficult the enforcement of the directly effective provision and your Lordship has no jurisdiction to do that
[speaker002:] erm
[speaker001:] because we would not be able to raise it as a shield in that one respect, now if your Lordship tried and then said well alright we stay the counterclaim is a set off, then what would your Lordship be intending to do about the remaining defences to say we're not allowed defend our claim er at all on the basis of article eighty five will that be
[speaker002:] that you say remaining def what remaining defences?
[speaker001:] well the, er I mean my Lord, if your Lordship
[speaker002:] I mean if you've got other non and we're assuming
[speaker001:] set aside
[speaker002:] we're assuming for the purposes of the argument that you haven't, I mean it's gotta be, you've got other defences altogether er and indeed terms of which I haven't made my mind up yet, but with judgement and your duty of care erm may themselves solve this particular problem
[speaker001:] er my Lord yes
[speaker002:] I quite agree, but if they, if those exists well then there's a, erm... well, I suppose again Mr might actually then adopt even further my article five suggestion say that you're not allowed to, to run those because they'd be contrary to the directive, but er we'd have to wait and see
[speaker001:] that would be to completely undermine the effect of article eighty five, we simply wouldn't be able to raise our shield at all, we would have a counterclaim but at which point since we had no of what erm, for example as one of it's principal defences, defences, erm we would say we've made the plaintiffs case very much easier, they've now got all our money, we're bankrupt, we can't pursue our claim because we've got no money to pursue it with... in article eighty five would of been completely undermined because we would not of had a realistic opportunity to raise article eighty five as a defence and your Lordship to do that would of had to not only set aside the counterclaim as a set off, but also to set aside the entire eighty five defence to stayed it or to have set it aside
[speaker002:] but of course we're assuming for the purposes of the argument that er, that erm, your... that is a matter of Eng English law, the matters of which you make complaint are a defence or set off
[speaker001:] my Lord we there is
[speaker002:] er but if there're not
[speaker001:] My Lord we've assumed as a matter of English law that I think the counterclaim can arise as a set off, but the other matters are a matter of community law
[speaker002:] mm
[speaker001:] not English law
[speaker002:] yes...
[speaker001:] my Lord, er, er, in, in my submission the, the, the highest really could put their case is that if the matter were referred your Lordship simply didn't stay proceedings or permitted them for example to apply for interim payment or permitted them to take some procedural steps to pursue their action so that they weren't unduly delayed should they succeed at the end of the day... and that would be a major concession because it would run against a normal rule cos on a reference the entire proceedings are stayed, that's not a case just saying even if that is done, er that anybody is saying that particular measure is or is good is not good or may not be forced in the interim
[speaker002:] mm
[speaker001:] because validity of the section fourteen is the question for ultimate trial, we're not seeking interim relief against that, we haven't done that [cough] my Lord that in our submission is the highest and the best that they could achieve erm properly erm which was to avoid a stay on a reference and they could then continue with the proceedings rather than be put off for a, a very, you know what maybe a year and a half, er if the court dealt with it in the normal way, or perhaps even a little bit longer, erm, but to actually go to further than that and to deny the defendant the right to put up a, a proper E E C defence, my Lord in my submission would be erm without the jurisdiction of the court....
[speaker002:] yes
[speaker001:] My Lord erm just to sweep up one or two of the other, very briefly the points my learned friend has just raised, erm... I, I think it follows that our provisional position at the moment is that we think that reference is probably more satisfactory than simply going to the commission, what went, if your Lordship went to the commission and then found that they were unsatisfactory or didn't really take matters further, for one of the reasons it might very well not, is because the original complaint put to the commission was not framed in the same way as the defence and counterclaim are now framed, er there's been a very considerable amount of refinement, both parties would no doubt wish to put submissions into the commission as to how the answer should be put or to provide information so the commission can answer them and so on and so forth and it may not be any quicker doing it that way
[speaker002:] mm
[speaker001:] than going to the court, erm for
[speaker002:] the only attraction of that is would be if you could both be able to tell me that if I erm, wrote them a letter, or you wrote them a letter on my behalf erm and they say of yes they are going to deal with this erm next Friday or something
[speaker001:] [LAUGHTER]
[speaker002:] it would be quite good idea to wait till next Friday, but the, the chances of that seem to be totally remote
[speaker001:] my Lord I would think that
[speaker002:] now
[speaker001:] probably not even that high
[speaker002:] apart from anything else er, er, er your complaint has been rather overtaken by events and, and both parties would no doubt wish to... to or may well wish to take further, er, but I think you'll both agree that prospects of er let say getting any meaningful answer out of the commission by Christmas are remote.
[speaker001:] Well my Lord the position as er your Lordship is aware from the letter exhibited to Mrs affidavit is the commission were informed in neutral terms
[speaker002:] mm
[speaker001:] about this hearing
[speaker002:] yes
[speaker001:] they've had a copy of the order, we have heard no reply from them so
[speaker002:] no...
[speaker003:] My Lord very briefly just sweeping up one or two points, my Lord I don't think I need to because as I say we're not challenging the law, erm I don't think that's the right context in which these, these problem arise
[speaker002:] yes
[speaker003:] er my Lord simply directives under one art article one, eight, nine, erm I can, very simply say in relation to the Lloyds Act and to the bye laws they were adopted ten years after the directive, there can't therefore be an implementation, they, they, the the implementation is fully set out in the Insurance Companies Act nineteen eighty two and it quite clear now because the Secretary of S
[speaker002:] well I'm not sure I'm not sure they can't implementation I mean, we're, we're supposed to erm implement erm, equal, pension, rights for men and women
[speaker003:] mm
[speaker002:] we're not actually going to finish doing that until twenty twenty which will be er... nearly forty years on really
[speaker003:] look, look, may I put it this way, we're in the directive of being able to point to something which permits the Secretary of State to delegate the function, that what's it for
[speaker002:] well I do think I have, I have those points, erm, I don't want to stop you Mr er, and I do repeat I'm going to, I'm going to rule on these matters and both parties have er, erm, will have certainly have full liberty to come back and, and deal with them, I just wanted to know in outline the present parties er to the future of these proceedings er, er the one thing that has come clear through er your submission Mr is that you're not er in any way enamoured of the idea that there should be some scheme whereby your clients erm pay their central fund and demands and er, er, and erm maintain their counterclaim here after
[speaker003:] [LAUGHTER] my Lord indeed I hope that has come across very clearly []
[speaker002:] yes well I'd be rather surprised if you acceded to the idea, erm, yeah, can Mr help us on that this position?
[speaker003:] my Lord I can I'm sitting early tomorrow because a witness is being cross examined by Mr got to go off to so tomorrow he simply could not er, he si simply could not be released but er with your clerk er we've been able to speak to Mr
[speaker002:] mm
[speaker003:] we've been slightly more amenable but invite to your club temerity to ask your Lordship rather me, but as I'm on my feet, er ask your Lordship whether you could sit at all early on Friday as to help Mr er, I, I was little concerned to hear Mr say that he was going to wait for Mr he had responded because that would of course then extend more into Friday, it may be more sensible if Mr could have
[speaker002:] well you would if, I think it's unsatisfactory er to get to ask Mr to deal with Mr
[speaker003:] yes my Lord
[speaker002:] and then Mr I think necessarily may be saying something the same as or, along the same lines as Mr and then Mr have er yet another go, I think it, that's in which case I'm not very satisfactory because er it means that Mr has got to reassemble his final remarks erm, twice
[speaker003:] my Lord in which case I think,ev even with Mr putting in his notice will, it's bound to take an hour
[speaker002:] yes
[speaker003:] erm may I suggest Mr if your Lordship would care to sit at ten o'clock and then think he'll get at eleven fifteen, but really in
[speaker002:] erm...
[speaker004:] [whispering] under very great stress he's, already lost one judge because this []
[speaker002:] well I think erm, the short answer is that I can't erm, erm provide the parties with any time on Friday, er, the case, this case has already some what over run it's estimate, which has put pressure on the commercial judge as it is, there's gonna be even more pressure on Friday, erm, I'm afraid to say the, that the complexities of this case as such that I cannot erm begin to think that even if we started at ten we would erm, necessarily finish within the hour, I have difficulties starting at ten o'clock anyway, I think we'll simply have to erm, put the matter off, off until Monday morning I, Mr can't attend I really don't think that I can erm put it off er any longer than that
[speaker003:] er my Lord he'll obviously have to make enquiries as to whether he can ask his next case to, to start
[speaker002:] mm, erm... because I've got to provide some, some answer before Christmas even if it, even if the answer is that I can't provide an answer
[speaker003:] yes
[speaker002:] erm, er and I'm have to take some time over this, so I think erm in the circumstances the better thing to do would be to adjourn this case till Monday morning and hope that Mr can so arrange his affairs to address me at half past ten on that day, er with Mr and with erm, whatever rights he has to erm deal with matters of this, come up a fresh in reply and to finish off, I'm gonna leave it like that, a very much, and as I say as far, as far as tomorrow's concerned that's er not a difficulty with erm, either Mr informs me which is unlikely or I can, at least get a, make a start, er on the other aspects of the judgement, alright then half past ten on Monday morning
[speaker005:] court rise...