France – a culture that famously celebrates wit and repartee – has given us the phrase “esprit d’escalier” to describe that moment when it is only on the way down the stairs that you think of the brilliant retort that you should have made 10 minutes earlier.
In a judgment issued today, the High Court had to consider the lawyers’ equivalent to “esprit d’escalier”: the realisation after the hearing – or even after judgment – that there is a point that you should have taken but did not.
The case concerns an issue of EU law. An Irish national placed money in an Irish pension fund registered with the Irish tax authorities. Some years later he moved to London to pursue a consultancy business and then became bankrupt in England and Wales. Under the relevant UK statutes, money that he had placed in an UK. fund registered with HMRC would have been protected against his insolvency. But his Irish fund was not so registered and hence was, under the strict wording of the statute, in principle part of his bankruptcy estate and available to his creditors.
The Irish national took the point that that result infringed his rights of freedom of establishment under EU law (Article 49 TFEU), as it discriminated against those who had pension assets in another Member State. The trustees in bankruptcy denied that Article 49 was engaged. In 2020 (during the transition period) the High Court referred that question to the Court of Justice of the EU (“CJEU”), deciding in addition that if the Irish national was right, the UK statute could be “read down” so as to give equivalent protection to his Irish pension.
A point that the trustees did not take at that stage was whether – if Article 49 was engaged – the restriction or discrimination could be justified on public interest grounds. No issue on justification was discussed before the High Court or referred to the CJEU.
However, before the CJEU, both the trustees and the Commission raised the issue of possible justification. (The UK government did not exercise its right to take part and made no submissions.) In its judgment, in addition to answering the question of whether Article 49 was engaged in the Irish national’s favour – the CJEU gave guidance on how the national court should approach the question of justification.
At that point, the trustees asked the High Court to consider the question of justification.
In today’s judgment, the High Court refuses to allow them to raise that issue. It rejects the trustees’ claim that the CJEU was instructing the national court to consider that issue, observing that that claim was not consistent with the CJEU’s language or the relationship between the CJEU and national courts. It considers that in effect the trustees were trying to raise a further issue – on which the onus of proof lay on them – after having received a draft or final judgment: something that would be permitted only in exceptional circumstances.
The lesson from the case is that, in general, “esprit d’escalier” thoughts are just too late. That principle is further illustrated in a different context in this very case: the court notes that the trustees had, after the hearing of this matter, put in further written “post-hearing submissions”, and states that such submissions should be made only with the permission of the court.
George Peretz QC acted for the Irish national in the High Court and CJEU.