A SPLIT TRIAL IS NOT ALWAYS A GOOD IDEA: ORDERS MADE WITH THE BEST OF INTENTIONS CAN PROVE TO BE A COSTLY EXERCISE

In Mather v Ministry of Defence [2021] EWHC 811 (QB) Mr Justice Freedman refused the claimant’s application for a split trial.

“The law reports are littered with cases where a preliminary issue seemed a good cost-saving exercise, but where not sufficient attention was given to the consequences.  Remarks like ‘deceptively attractive short-cut’ appear in the reports.  In the end, that which is intended to shorten the path sometimes serves considerably to lengthen it.  The result is something entirely contrary to the overriding objective despite the best of intentions.  None of this means that a trial of a preliminary issue is always a bad idea: it simply has to be approached with caution. None of this means that a trial of a preliminary issue is always a bad idea: it simply has to be approached with caution.”

THE CASE

The claimant brings an action alleging that he developed multiple sclerosis and psychiatric injury as a result of his work with the defendant. Liability and causation are in dispute.  The defendant applied for a split trial.   The claimant was content for damages to be assessed separately, there were issues as to whether causation should be tried as a separate issue.

THE DEFENDANT’S APPLICATION

1. 1. The Defendant expresses confidence about its defence to the claim and believes that it will succeed on causation which would render the trial of the other issues otiose. To that end, it seeks to have tried causation as a preliminary issue in one of two ways, that is either by

(a) defining a preliminary issue on causation with the Claimant’s best case on exposure being the assumed facts, and limiting oral evidence to medical causation; or

(b) formally opening the trial, limiting oral evidence to that relevant to medical causation, and then making a ruling on causation, with other issues to follow if necessary.

THE JUDGE’S REFUSAL OF THE DEFENDANT’S APPLICATION

The judge refused the defendant’s application.   The case was not of a nature that causation could be tried as a distinct issue.

1. 1. The law reports are littered with cases where a preliminary issue seemed a good cost-saving exercise, but where not sufficient attention was given to the consequences.  Remarks like ‘deceptively attractive short-cut’ appear in the reports.  In the end, that which is intended to shorten the path sometimes serves considerably to lengthen it.  The result is something entirely contrary to the overriding objective despite the best of intentions.  None of this means that a trial of a preliminary issue is always a bad idea: it simply has to be approached with caution. None of this means that a trial of a preliminary issue is always a bad idea: it simply has to be approached with caution.

1. 1. Applying the criteria considered by David Steele J in McLoughlin v Grovers (A Firm) to the instant case and using the numbering therein, the following conclusions arise:

(1) This is a case where a finding in favour of the Defendant on causation, whether generic or individual (as referred to in paragraph 16 above), would be decisive.  However, a finding in favour of the Claimant on causation would involve going back to have to consider the nature of the duty and breach of duty, and then having to visit causation all over again to assess whether the specific breaches (if any) of the duties (to the extent that any were found) caused the loss. This would bring with it the possibility of the Judge trying stage 2 having a different view of the evidence from those found at stage 1.  There would then be issues as to how far those findings bound the court at stage 2.  This would create especial difficulties if stages 1 and 2 were tried by different judges but might even be challenging if they were tried by the same judge.

(2) The issue on causation involves questions of law.  However, it also involves complex factual and scientific issues.  In the end, it is not a crisp issue to be decided, but it is multi-factorial, where the factors are a mixture of law and fact.

(3) This then gives rise to the difficulty of agreeing facts for a preliminary issue.  There are issues regarding the period of the exposure to take into account and in particular the issues as to whether there should be disregarded (a) any exposure after 1994, and (b) any exposure after 2000.  There is the issue as to whether the evidence of the 25 factual witnesses is required and the occupational hygiene experts in the first trial.   At lowest, there is great effort in identifying the relevant facts.  There is no reasonable prospect of agreeing them.

(4) A split trial between causation and other liability issues would be likely to cause significant delay as a result of a likely appeal.  The prospects of an appeal at the end of stage 1 are significant, and the effect of that on the trial issues is considerable and possibly intolerable delay.  Further, if the Claimant succeeds at stage 1, there are the difficulties of managing the case at stage 2 (see point (i) above), especially if that follows a long delay following an appeal.

(5) Master Thornett was right to reserve this matter to a case management conference.  Many issues have been thrown up.  A decision not to order a trial of a preliminary issue does not mean that nearer trial matters cannot be revisited if there are changes in circumstances.  However, it would have to take into account the matters set out in this judgment.

1. 1. At the hearing the Claimant made submissions by reference to Barrett v Enfield London Borough [2001] 2 AC 550 at 557F-G and Vedanta Resources PLC v Lungowe & ors. [2019] UKSC 20 at para. 48, and with permission of the Court the Defendant has replied by a written note. The Claimant relies on these cases as reminders about the dangers of trying negligence cases on assumed or hypothetical facts. The Defendant submits that neither case provides guidance on the issues of whether to order a preliminary issue or to try causation separately from the other issues. Barrett was a strike-out appeal and Vedanta was an appeal relating to a jurisdictional challenge. The analysis of facts was much less advanced than in the instant case. The cases related to novel and controversial developments in the law of negligence. The Defendant says that any difficulties of law may turn out to be artificial constructs or Micawberism (see Lady Hale at para. 45 in Vedanta). Even if difficult issues of law exist, they will not be fact sensitive. All of that is possible, but in my judgment, absent applications to strike out the claim or for summary judgment which the Defendant properly recognises are inappropriate, it is premature at this stage to make assumptions that the Claimant would lose a preliminary issue or that any points of law would not be fact sensitive. At this stage, it is in my judgment more prudent to resolve the issues in this case on actual rather than assumed or hypothetical facts. In any event, the practical difficulties which would ensue from a decision on assumed facts at stage 1 and possibly a decision on fact finding of different facts at stage 2 as referred to in paragraph 35(1) above should be avoided.

V Conclusion

1. 1. The Defendant has highlighted the judgment of the Court in the case of Saunderson & ors v Sonae Industria (UK) Ltd [2015] EWHC 2264 (QB).  It particularly refers to para. 636 where Mr Justice Jay was critical at the end of a lengthy judgment of the failure on the part of the claimants to grapple with the science to see whether the case stacked up.  Instead, the claimant’s’ legal team had “wanted to make a virtue out of uncertainty – perhaps because they clung to the notion that the litigation would settle”.  They may have placed undue faith on the likely cogency the lay evidence instead of concentrating on the science.

1. 1. However confident the Defendant is about the eventual result, this rather puts the cart before the horse.  First, there has to be a trial to reach a conclusion as to whether the Claimant’s case fails. That still does not engage Saunderson because that was a case where the Claimant’s conduct of the case was impugned.  Absent an application for summary judgment or strike out, which there is not to be, it is premature to make any assumption that either the case will fail, or still further that following such a trial the Claimant’s conduct will be impugned.  Fortunately, judicial criticism of the kind quoted in para. 37 above is reserved for an unusual case, and, in that case, it was only at the end of a long and complicated trial.   At this interim stage, Saunderson has no application to the instant case. 

Having considered all of the matters before the Court, this is not a case where it would be just or prudent to order a trial of a preliminary issue either on the basis of assumed facts or a trial of causation alone without a trial of the other issues as regards liability.  It does seem sensible to separate quantum if that can be done easily, but before making such an order, the Court would wish to hear more about how that would work in practice.  Further, Ms Harrison QC has not addressed the Court about that issue because it did not arise on her application.  At the same time, attention should be given as to whether the medical condition and prognosis of the Claimant is such that his evidence might need to be taken in advance of the trial or in advance of a quantum hearing. As noted above, nothing in this judgment prevents matters from being revisited nearer the trial, but in view of the matters set out above, it is likely that there would need to be a change of circumstances in order to justify trying causation as a preliminary issue in advance of other liability issues.