SHOULD THE COURT ORDER A SPLIT TRIAL ON LIMITATION? THE FUTILITY OF CITING DECIDED CASES: “SCRIPTURE FROM WHICH THE DEVIL MAY FREELY QUOTE”

In Hutson v Tata Steel UK Ltd [2019] EWHC 1608 (QB) Mr Justice Turner refused the defendant’s application for a split trial on limitation in a group action.   The judgment makes it clear that there is no “burden” on any party when the court is considering whether there should be a hearing of a preliminary issue. Further these matters are extremely fact sensitive, the citing of appellate decisions on these issues

“I have been provided with a generously-filled bundle of authorities which cover a wide variety of cases in which the courts have considered the relative advantages and disadvantages of the hearing of preliminary issues. Paradoxically, if one overarching conclusion can be drawn from them, it is that no overarching conclusion can be drawn from them.”

“The temptation to extract, and rely upon, broadly stated judicial pronouncements from earlier decisions has, in this case, predictably resulted in a superfluity of reference to authority. One only has, for example, to compare and contrast the observations of the Court of Appeal in two of the cases cited before me to appreciate the wealth of scripture from which the Devil may freely quote”

THE CASE

There was  some 229 claimants bringing actions alleging exposure to dust and fumes which led to injuries, mainly respiratory conditions.  The defendant filed a generic defence, its case was that it had a limitation defence in around half of the claims. The defendant applied for a split trial with limitation (and Section 33) issues to be tried first.

THE JUDGMENT: THE (F)UTILITY OF DECIDED CASES

The judge considered the authorities that have been placed before him, he had some doubts as to their usefulness.

CASE LAW
    1. I have been provided with a generously-filled bundle of authorities which cover a wide variety of cases in which the courts have considered the relative advantages and disadvantages of the hearing of preliminary issues. Paradoxically, if one overarching conclusion can be drawn from them, it is that no overarching conclusion can be drawn from them.
    2. Put shortly, there are so many possible permutations of fact which lie behind the cases in which the suitability of ordering the hearing of a preliminary issue falls to be determined that there are particular dangers in seeking to elevate judicial observations in the context of any particular factual matrix to a status akin to one bearing statutory force. One must not lose sight of the fact that these are, in essence, all case management decisions which are, necessarily, very fact-sensitive.
    3. The temptation to extract, and rely upon, broadly stated judicial pronouncements from earlier decisions has, in this case, predictably resulted in a superfluity of reference to authority. One only has, for example, to compare and contrast the observations of the Court of Appeal in two of the cases cited before me to appreciate the wealth of scripture from which the Devil may freely quote:
“Wherever the judge considers it feasible to do so, he should decide the limitation point by a preliminary hearing by reference to the pleadings and written witness statements and, importantly, the extent and content of discovery.”
KR v Bryn Alyn Community (Holdings) Ltd [2003] 3 WLR 107
“While they have their value, it is notorious that preliminary issues often turn out to be misconceived, in that, while they are intended to short-circuit the proceedings, they actually increase the time and cost of resolving the underlying dispute.”
Bond v Dunster Properties Limited [2011] EWCA Civ 455
  1. This does not, of course, mean that no assistance is to be derived from consideration of the decided cases. They are particularly helpful in identifying and articulating the types of factors which may fall to be considered in any given case. It does, however, mean that I reject the defendant’s contention to the effect that any party opposing an application for the hearing of a preliminary issue in a case such as the present bears a burden of persuasion. The balancing act is one which should be approached from the outset with an open mind.

THE JUDGE’S DECISION ON THE FACTS OF THIS CASE

 

THE STRENGTH AND SCOPE OF THE LIMITATION DEFENCE
    1. The defendant contends that the application of the principles identified in Carroll provides them with a strong case on the limitation issue in respect of a significant proportion of the claims. By way of example, it points to the following categories of potential evidential prejudice upon which it would be entitled to rely:
(i) Many of the various sites at which the relevant employees worked have long since closed down;
(ii) Many of these employees are dead and, in some cases, there are no surviving relevant employees from premises which have since closed;
(iii) In a number of cases involving posthumous claims, the medical and work records are depleted or missing.
    1. I readily accept that the points raised by the defendant on the issue of evidential prejudice mean that it has a prospect, which, at the very least, is more than fanciful, of succeeding on the issue of limitation in some cases. On the other hand, the defendant’s prospects of demonstrating that any given case is statute barred are not such as to be likely to be sufficiently strong, at least in most if not all cases, as to equip it to strike out the claim under CPR 3.4 or obtain summary judgment under CPR 24. It would be inappropriate for me attempt to assess the strength of the limitation defence with any greater level of precision between these two broad parameters at this stage.
    2. The fact that there is a prospect that the defendant might well be successful in some undefined proportion of lead cases in which a preliminary issue of limitation is intended to be raised is not, however, determinative of the merits of the application before me. Other salient considerations fall to be taken in to account.
COSTS
    1. The defendant contends that the hearing of a limitation preliminary issue in selected lead cases would bring about a costs saving because the judgment of the Court in such cases would potentially lead to the early disposal of a significant number of other cases which would otherwise be expensive to prepare for and litigate in full.
    2. I readily accept that questions of costs are, potentially, of considerable importance in the context of the determination of the merits of embarking on the hearing of a preliminary issue in any given case. Care must be taken, however, to identify whether the hoped-for savings may be more apparent than real.
    3. A central consideration is the extent to which the determination of the limitation issue in selected lead cases would be likely to catalyse the early resolution of a high proportion of other claims. In this regard, the claimants make the following points:
(i) About half of the claims are not intended to be the subject of a limitation challenge. It must follow that the determination of lead cases confined solely to the limitation issue would provide no useful guidance whatsoever as to the proper resolution of such unaffected cases.
(ii) Only those lead cases, if any, in respect of which the limitation issue is decided in favour of the defendants would be concluded once and for all. Any that survive could well continue to be resisted on the remaining substantive grounds of defence including, for example, matters relating to diagnosis and causation.
(iii) Any adjudication on the limitation issue in the lead cases will not, in any event, be legally determinative of the result in any of the other cases which the defendant claims to be statute barred. The issues adjudicated upon are unlikely to involve the resolution of any disputed questions of law or documentary construction. Indeed, the proper approach to be taken to applications to disapply the three year limitation period is set out in recent detail in Carroll, from which I have already quoted at length, and is unlikely to be significantly revised by any further useful elaboration in the context of the present claims.
(iv) There is also a limit to the assistance which the exercise of the discretion in lead cases would provide in informing the parties as to the strength of the limitation issues arising in other cases. These claims involve over 20 different coke works with varying levels of consistency and availability of documentary records and a very considerable number of claimants the personal circumstances of whom are likely to vary significantly each from the other.
    1. In my view, there is force in these points.
    2. Moreover, the costs of hearing preliminary limitation issues are likely to be out of proportion to the perceived benefits. Even on the defendant’s estimate, the determination of such issues will take many days and I accept the claimants’ contention that it would probably be necessary to hear live evidence in any given case from: claimants, family members, union officials and/or, potentially, from legal or medical advisers. I am also persuaded that there is likely to be a significant overlap between the evidence which would have to be explored on the limitation issues and that which would have to be considered in the context of substantive liability.
DELAY
    1. A further adverse consequence of ordering the hearing of preliminary issues in this case is the likelihood of delay. The progress towards a determination of the remaining issues will inevitably be significantly interrupted. The defendant concedes that a delay of at least six months is likely. That may well be an unduly optimistic prediction.
    2. The length of any hearing of preliminary limitation issues would, in itself, be measured in weeks and the parties are in predictable dispute over any more precise estimation than this. Again, I consider that the defendant’s estimate (of two weeks) is optimistic.
    3. I must also bear in mind that many of the surviving former employees are elderly. So, too, are the claimant relatives of those employees who have died. Delay thus gives rise to a significant risk that many of those most likely to benefit the most directly from compensation, in the event that they were to have been successful, will have died waiting.
FAIRNESS TO THE DEFENDANT
    1. A further objection taken by the defendant is that it is automatically prejudiced by the hearing of the limitation point and the substantive issues simultaneously. In other words, it faces two conflicting tactical objectives:
(i) To maximise the extent of the evidential prejudice it has suffered in order to win on the limitation issue; or
(ii) To minimise the extent of the evidential prejudice it has suffered in order to win on the substantive defence.
    1. The contrary argument is that a court adjudicating upon the issue of limitation will be in the best position to strike the requisite balance between the respective positions of the parties if it has available to it all the evidence which would otherwise be necessary upon which to make a substantive determination. So long as the court rigorously follows the proper sequence of analysis, the result will be fair to both sides. Of course, cases may well arise in which the cost of hearing the evidence on substantive liability will be disproportionate but where, as here, there is no countervailing costs advantage I am not persuaded that the position is automatically detrimental to the position of a defendant. In B v Nugent Care Society [2010] 1 WLR 516, Lord Clarke MR, who gave the judgment of the court, observed at paragraphs 21-22 that the judge who has to determine the issue as to whether the primary limitation period should be disapplied:

“…may well conclude that it is desirable that such oral evidence as is available should be heard because the strength of the claimant’s evidence seems to us to be relevant to the way in which the discretion should be exercised. We entirely agree with the point made at vii) that, where a judge determines the section 33 application along with the substantive issues in the case he or she should take care not to determine the substantive issues, including liability, causation and quantum before determining the issue of limitation and, in particular, the effect of delay on the cogency of the evidence. To do otherwise would, as the court said, be to put the cart before the horse.

22. That is however simply to emphasise the order in which the judge should determine the issues. When he or she is considering the cogency of the claimant’s case, the oral evidence may be extremely valuable because it may throw light both on the prejudice suffered by the defendant and on the extent to which the claimant was reasonably inhibited in commencing proceedings…

PROPORTIONALITY
    1. The defendant urges me to have regard to the fact that the individual claims are likely to be of relatively low value and thus the value of hearing limitation as a preliminary issue is greater. However, as I observed in Pearce v The Secretary of State for Business, Energy and Industrial Strategy [2018] EWHC 2009 at para 69:
“The defendant raises the additional argument that the potential value of Mrs Nicholls’ claim is disproportionately low when compared to the costs involved in litigating it. I am not impressed by this contention. As the claimants rightly point out, the Court, when deciding whether to make a GLO, had to consider the issue of proportionality. A key purpose of a GLO, as recognised by the Final Access to Justice Report (July 1996), quoted in the White Book at 19.10.0 (p.657) is to “provide access to justice where large numbers of people have been affected by another’s conduct, but individual loss is so small that it makes an individual action economically unviable.””
DISCLOSURE
    1. The defendant seeks to mitigate the demands which would be made upon the parties’ time and resources in resolving preliminary limitation points by proffering and commending the option of narrowing the scale of disclosure which would be required. I am of the view, however, that this course, even it if were otherwise unproblematic, does not sufficiently diminish the disadvantages which I have identified to make the preliminary issue application an attractive one.
CONCLUSION
  1. In all the circumstances, despite the skill and care with which the defendant’s arguments have been deployed before me, I am satisfied that the overriding objective in this GLO would not be best served by determining limitation defences by way of the hearing of any preliminary issue or issues and, thus, refuse this application. The parties are invited to agree a form of order which reflects my conclusion and deals with any remaining ancillary matters including costs. In the event of disagreement, I would be prepared to resolve any outstanding issues on paper.