1.1 The COVID-19 pandemic is continuing and will persist into 2022, creating problems and delays in every sector. The already strained Courts service has not been immune to the impact of the pandemic, with the inevitable consequence of crippling delays on its systems and stakeholders, the litigants, the lawyers and the court officers. Compliance with COVID-19 protocols, and the ongoing severe impact caused by compliance with social distancing requirements, infections (and up until recently close-contacts) have added to the strains, and resulted in court time becoming an increasingly valuable commodity.
1.2 The deployment of interlocutory motions, virtual hearings and modular hearings/trials, are all tools in the armoury that should be deployed to ease the growing strains on the court system. In this article, we explore in some further detail how modular trials might achieve efficiencies should the court agree to carve out key issues in dispute, permitting parties to seek a determination of those issues in separate modules, rather than the traditional single hearing. The goal being to condense the issues in complex civil trials, resulting in savings in court time, reducing the issues in dispute and minimising the overall legal costs; allowing parties to look at early resolution of the entire dispute, by mediation, or otherwise.
1.3 In the recent High Court case, Novartis Pharma AG v Eli Lilly Nederland BV & Others1, Mr Justice Twomey considered the circumstances in which the court might grant a modular trial; with the potential to save up to four weeks of court time and the associated costs – and clearly a useful tool to deploy where appropriate in the continuing pandemic storm.
2.1 The facts of this case centred on an alleged patent infringement with two competing pharmaceutical companies. The substantive issue arose from two sets of proceedings, principally arising out of the ownership of the patent in issue. The Defendant sought to split the trial into two modules with the first module addressing whether the Defendant's product fell within the scope of the infringement action and the second module to deal with the Defendant's competition defence and the resulting available remedies, should the Plaintiff be successful in its claim.
2.2 The Defendant submitted that if it were successful in the first module, then it would not require to advance its competition defence arguments; and the Defendant argued that permitting a modular hearing on this first issue would potentially result in saving significant court time and costs, estimated in the region of 2 ½ to 4 weeks.
2.3 The Plaintiff countered that it would be prejudiced by a modular trial, which was in essence advantageous to the Defendant, where the patent in issue was due to expire within a matter of years; i.e. 2 June 2024, and possibly by the time judgment would be delivered on the Defendant's second module. This was prejudicial to the Plaintiff and would deprive the Plaintiff of the opportunity to apply for an injunction in the intervening period to prevent the ongoing alleged infringement by the Defendant.
2.4 Mr Justice Twomey noted that the public interest considerations in potentially saving 2 ½ to 4 weeks of court time, and the resulting legal costs, were very real and that it was appropriate to consider the application for a modular trial.
- MODULAR TRIALS OR UNITARY TRIALS?
3.1 In reaching its conclusion the court considered the five principles that it should consider when assessing an application for a modular trial, which it listed as follows:
- The default position in relation to litigation is that there should be a unitary trial;
- The onus is on the party seeking a departure from the default position to persuade the court that there are sufficient reasons to order a modular trial;
- Where proceedings are complex and the trial is likely to be lengthy and there is the possibility of a considerable saving of court time and parties' costs, then it is appropriate for the court to consider modularisation;
- The key consideration is to ensure the fair administration of justice, and in particular the absence of prejudice for the party objecting to the modularisation; and
- Where the court is not satisfied that the application for a modular trial is brought in good faith, such that it is likely to benefit both parties to the litigation, but for some ulterior benefit to the applicant, then it should be refused.
3.2 Mr Justice Twomey applied the five principles to the facts of this case; and was particularly swayed by application of the above fourth principle, noting that if a modular trial were to be granted that it would deprive the Plaintiff of even the possibility of applying for an injunction, and this would not occur if a unitary trial was heard. Consequently, the court held (in this instance) that the modularisation of the trial would unfairly prejudice the Plaintiff.
3.3 Mr Justice Twomey noted that had there not been prejudice to the Plaintiff, the court would have had no hesitation in ordering the hearing of a modular trial as sought, noting it would otherwise have been in the public interest and in the interests of saving legal costs and management time for both parties.
4.1 Mr Justice Twomey's judgment is a timely overview of the applicable principles to be considered by lawyers and litigants when considering strategies on how to progress a case in a cost conscious and time effective manner. This remains particularly apt, given the continued negative impact of the pandemic on our court system. The judgment aligns with the current approach of the Judiciary in certain Court lists where practice directions have issued to encourage modular trials of separate issues, for example in the Judicial Review planning list of the High Court.
4.2 Despite rejection of the application for a modular trial in the Novartis case, it is clear the judiciary remains open to innovation, including permitting modular trials where doing so, does not prejudice a party to the dispute, and where it is in the interests of justice and will lead to an inevitable saving in court time and costs. This approach is good news for the stakeholders, but is not a panacea for resolving all disputes or a quick fix mechanism at the expense of dispensing justice. Demand for modular trials is likely to increase as the pandemic continues to interfere with the court system and as long as the principles set out in Novartis are appropriately and proportionately applied, modular trials may alleviate a significant amount of the pandemic enforced strain on the Court system.
1.  IEHC 814
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