Jurisdiction(s):
United Kingdom

Trustees refused permission to argue justification post-CJEU; High Court (E&W) reads down WRPA 1999 s 11; Irish pension excluded from bankruptcy under Article 49 TFEU

Published on: 30 March 2022

Published by a LexisNexis Restructuring & Insolvency expert

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Article summary

Re Michael Bernard McNamara; Wilson and another (joint trustees in bankruptcy of Michael Bernard McNamara) v McNamara and others [2022] EWHC 243 (Ch)

What are the practical implications of this case?

The applicants were prevented from advancing a fresh point after a Court of Justice ruling. Their argument—that the Court of Justice’s conclusion that WRPA 1999, s 11 was contrary to Article 49 TFEU, save where justified in the public interest, meant the UK High Court had to assess justification—was rejected. The Court of Justice is not an appellate body issuing instructions to a lower court; apart from delivering definitive statements of law, it lacks authority to direct the national court’s procedure or determinations. It followed that any justification case had to be raised within the existing proceedings, and the applicants had not done so before the preliminary ruling was obtained. Although a court may, prior to judgment being sealed, re-open a matter to entertain an additional question, such applications are exceptional, discouraged, and on the facts here were inappropriate. The applicants...

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