Ireland: Reducing The Cost And Inconvenience Of Litigation - Modular Or Split Trials

Last Updated: 9 January 2014
Article by Stephen O’Sullivan

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.

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 this, 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.

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 wasa 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.

I intend to update as the law develops

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Stephen O’Sullivan
Similar Articles
Relevancy Powered by MondaqAI
Matheson
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Matheson
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions