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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Macarthys Ltd v Smith (No.2) [1980] EWCA Civ 7 (17 April 1980) URL: http://www.bailii.org/ew/cases/EWCA/Civ/1980/7.html Cite as: [1980] EWCA Civ 7, [1980] 3 WLR 929, [1980] IRLR 210, [1980] 2 CMLR 217, [1981] 1 All ER 111, [1980] ICR 672, [1981] QB 180 |
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COURT OF APPEAL
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
B e f o r e :
LORD JUSTICE LAWTON
and
LORD JUSTICE CUMMING-BRUCE
____________________
MACARTHYS LIMITED |
Appellants |
|
v |
||
WENDY SMITH |
Respondent |
____________________
MR. A. LESTER, Q.C. and MR. C. McCONMELL (instructed by John L. Williams, Esq.) appeared on behalf of the Respondent.
____________________
Crown Copyright ©
The appeal that the employers 'brought to this court must therefore be dismissed.
The argument before us to-day was as to costs. It was argued before us that at the hearing before the tribunals - and indeed before this court - Macarthys Limited were entitled to look solely to our English statute on equal pay. It was said that, in that statute, our Parliamentary draftsmen thought they were carrying out - and intended to carry out - the provisions of the Treaty. So much so that, before the European Court at Luxembourg, the British government argued that, in order for the woman to be entitled to equal pay, her employment has to be contemporaneous. Accordingly Macarthys said that they were entitled to go by the English statute, and not the Treaty of Rome: and so the costs should not fall upon them of the appeal to this court.
The answer is this: Macarthys had no right to look at our English statute alone. They ought throughout to have looked at the Treaty as well. Community law is part of our law by our own statute, the European Communities Act 1972. In applying it, we should regard it in the same way as if we found an inconsistency between two English Acts of Parliament: and the court had to decide which had to be given priority. In such a case the party who loses has to pay the costs. So it seems to me right that Macarthys should pay all the costs of the appeal to this court. I may say that Mrs. Wendy Smith - or those behind her - do not ask for the costs of the reference to Luxembourg. That is a special arrangement which applies in this particular case: although it may not apply in other cases. All we are concerned with to-day are the costs in this court. In my judgment, the appeal should be dismissed with the costs in this court to be paid by the unsuccessful appellants Macarthys.
LORD JUSTICE LAWTON: I agree.
LORD JUSTICE CUMMING-BRUCE: I agree. I would only add a word in view of the fact that Mr. Lester has drawn the attention of this court to the existence of a note by Professor Wood-Phillips in the Law Quarterly Review of January 1980 which apparently expressed the view that the decision of this court has created a doubt about the constitutional position arising from a conflict between an English statute and European law. In my view there is no real room for doubt, and, if anything that I said in my judgment has given rise to doubt which is based on misunderstanding, I repeat what I said on the last occasion, that, "if the terms of the Treaty are adjudged in Luxembourg to be inconsistent with the provisions of the Equal Pay Act 1970, European law will prevail over that municipal legislation". I went on to say this: "But such a judgment in Luxembourg cannot affect the meaning of the English statute".
MR. LESTER: I am obliged, my Lords. I must apologise to your Lordships and to Mr. Post for any burdens created by a wrong estimate of time.
THE MASTER OF THE ROLLS: It is an important point, and ought to be made clear.
MR. McCONMELL: I would ask for a certificate for two counsel, my Lord.
THE MASTER OR THE ROLLS: Me have had a great deal of help. Yes; certificate for two counsel.
(Order: Appeal dismissed with costs in this court. Certificate for two counsel granted to respondent).