A party may apply to have a trial split into parts– called split trials or modular trials. This is usually in order to save costs or to avoid inconveniencing witnesses. The most common application is for liability to be determined before quantum or the Statute of Limitations to be determined before the other issues. In commercial cases, because the trial might last 20 days plus, a party might seek to have some facts determined first, perhaps giving them a chance to settle if they lose that module. Also, if modular trial is ordered, there might be reduced scope for discovery before that module thereby reducing costs.
This is well dealt with in Civil Procedure in the Superior Courts Delany & McGrath (paras. 14-43, 29-30) for the period up to December 2011. This article addresses some important caselaw since then.
Order 25 of the RSC allows a party to apply to have a point of law determined prior to the hearing.
Order 34 of the RSC allows the same but based on agreed facts. This would usually involve the defendant conceding the facts pleaded by the plaintiff for the purpose of the preliminary hearing and seeking a determination that the plaintiff must fail in the action by reason of the law. In Smyth v. An Garda Siochana (Unreported High Court 16/5/13) the plaintiff sued for negligence against the defendant and the court agreed to put the issue of whether the defendant owed a duty of care in the circumstances to preliminary hearing, with the defendant agreeing the facts in the statement of claim for the purpose of that hearing. The court was not willing to put the issue of the Statute of Limitations to preliminary hearing as it would require evidence.
O.63.A.r.6.1.ii provides the Commercial Court may fix any issues of fact or law to be determined in proceedings on a modular basis.
SI 254 of 2016, which will apply from 1/10/16, makes various amendments to the Rules of the Superior Courts relating to the conduct of trials. The High Court has power in any case to direct that certain questions or issues of fact be tried before others and that the trial be conducted in modules with questions of fact, or fact and law, being the subject of a module, and the sequence of the modules to be determined by the court.
Separate to these provisions, a party may apply for points of law or point of fact to be decided prior to the hearing pursuant to the court inherent jurisdiction. The court has stated in the cases below that the default position is for one trial. The court will only order modular trials if there are compelling reasons for it.
In Weavering v. Macro Fixed Income Fund Ltd. (Unreported Supreme Court 4/12/12) the Supreme Court overturned the High Court’s direction for a modular trial. The plaintiff was suing the defendant for negligent accounting services arguing that the defendant overstated net asset value of the plaintiff company resulting in a loss to investors.
The High Court, at the request of the defendant, directed a preliminary trial on eight issues which concerned inter-alia issues relating to the time limit for the proceedings (where the contract provided a time limit), whether the court was bound to follow findings in the UK as against directors of the plaintiff company in related proceedings, vicarious liability of the defendant, the cause of action that the plaintiff could plead and what categories of damage the plaintiff could claim.
The court adopted the principles in Cork Plastics Manufacturing v. Ineos (Unreported High Court 7/3/08) where the court outlined relevant factors as:-
- would the order avoid unnecessary expense and make more effective use of court time
- was there a need to save a party, who was involved in some only of a wide range of issues, from the expense and time of attending a full trial
- was there a range of approaches possible to the calculation of damages depending on the basis upon which liability may be established
- the likely length and complexity of the modules
- whether prejudice might arise in the absence of unitary trial such as where the court’s view on earlier modules might legitimately be influenced by evidence which would be given in a later module
The court also approved McCann v. Desmond (Unnreported High Court 11/5/10) where an additional factor was mentioned:-
- would the removal of issues to a modular hearing disadvantage the proper process of pre-trial preparation that discovery orders, notice for particulars and notice to admit facts involved
The court held it could only overturn the High Court order in a clear case. The court found that the parameters of the first module were insufficiently precise. If it was intended that certain questions were to be answered in the abstract without guidance as to how they applied to the facts in issue, then it would achieve little. If the questions were to be at applied to the facts then the trial would not be shortened by modularisation.
The court determined that one issue concerning the time limit of proceedings could be decided in a modular trial because the defendant conceded this.
Prior to Weavering, in PCO Manufacturing v. Irish Medicines Board (Unreported High Court 22/5/11) the applicant sought to compel the respondent to issue product authorisations. The courts refused a preliminary trial on the issue of whether the respondent had delayed in issuing the authorisations because it would involve oral evidence and discovery and if the applicant was successful the same witnesses would be recalled in relation to quantum.
As an example of the modular trial in operation, in IBRC v. Morrissey (Unreported High Court 12/11/13) the court determined on a preliminary basis the right of the plaintiff to make a demand on foot of a loan and whether a fiduciary relationship existed between the parties. The larger cases concerned whether the plaintiff was due nearly €37 million from the defendant.
A related development is the commercial court’s willingness to set down the trial of liability before the trial on quantum, and with that to order discovery relevant to liability only for the first trial. If the plaintiff succeeds at the first trial they might make a second application for discovery after that. See Cleary v. Sheehan (Unreported High Court 22/10/13).
The court may well order costs of the preliminary hearing to the successful party (see CLM Properties Ltd v. Greenstar Holdings Ltd (Unreported, High Court, 30/5/14). This might be disincentive to a plaintiff to seek a modular trial – they might lose on a preliminary issue but win on the main issue – if the trial ran in one session they might be in a better position to get all their costs.
In Brownfield Restoration (Ireland) Ltd. v. Wicklow County Council 2017 IEHC the High Court applied these principles and granted a modular trial on certain issues in an environmental law case.
Conclusion
In personal injury litigation, and in particular medical negligence cases, which would otherwise last a long time, an application to have liability determined in a preliminary trial prior to quantum might be be successful. This might avoid the cost of having actuarial experts on standby. Cork Plastics Manufacturing v. Ineos was a defective products case where the court directed a trial on liability first.
In all cases, an application to have the Statute of Limitations point determined first might succeed. However, if evidence is required to be heard, the court might ask just how much time will be saved by the split trial.
In judicial review cases the issue of the susceptibility of the decision to judicial review might be decided on a modular basis. In Telefonica O2 Ireland Ltd v. COMREG (Unreported High Court 30/6/11) the applicant was challenging the decision of the respondent in setting the price paid for emergency calls. The court allowed the issue of the standard of review to be determined on a modular basis – that meant disclosure and discovery was left over until that issue was decided.
In all cases the issues to be determined in the first module must be capable of determination in isolation from the other issues and progress the case such as to result in a saving of court time. Otherwise, the court may refuse the application.
The content of this article is intended to provide a general guide to the subject matter and is not intended to be a substitute for legal advice. Specialist advice should be sought about your specific circumstances.
Stephen O’Sullivan
