“Regulation beyond the echo chambers”: who is listening?
Contained within the Court’s general powers of management, in Part 3 of the Civil Procedure Rules (“CPR”), is the power to direct a separate trial of any issue (CPR 3.1(i)). Consideration of a split trial features throughout the CPR rules and accompanying practice directions, including CPR Parts 26, 28 and 29.
In high value Clinical Negligence and Personal Injury claims, it is commonplace to consider whether the case should proceed by way of a split trial. A split trial can be included as part of standard directions or can be requested by way of a direct application. Recent case law has provided further guidance and greater clarity on the factors to consider. With an eye to a changing costs landscape, greater emphasis is placed on the speed of cases reaching their conclusion as well as the expense of bringing proceedings.
What are the advantages of a split trial? Why would the parties request such a direction?
Alternatively, what are the disadvantages of a split trial?
Importantly, from a Claimant perspective, where it is decided that a case should proceed to a split trial, the parties will commonly not have time or opportunity fully to investigate the value of the case. This leaves Claimants considerably exposed to the risk of an early Part 36 offer by the Defendant. In cases where it is clear and obvious that prognosis and quantification is unclear (particularly in those claims where any settlement would require Court approval), Claimants may take some reassurance from SG v Hewitt  EWCA Civ 1053 (02 August 2012), in which late acceptance of an offer did not carry Part 36 costs penalties for a Claimant. Nonetheless, in many circumstances, the Claimant faces considerable risk, on the one hand, of under-compensation or, on the other hand, significant costs penalties.
Recent Case Law
Judicial comment in recent cases has provided some further guidance on matters to consider when deciding whether a case should proceed to a split trial or not.
Electrical Waste Recycling Group Ltd and Another v Philips Electronics UK Ltd and Others  EWHC 38 (ch)
This was a competition law case, whereby the Claimants (Electrical Waste Recycling Group Ltd and City Electrical Factors Ltd) sought to amend the Claim Form and made an application to split the trial, so that liability would be dealt with separately from the assessment of the value of the claim.
The Claimants’ interim application for a split trial was made on the basis that the quantification of the claim depended on the scope of the Dependants’ liability, the assessment of which was likely to be complex. In other words, in order for the Claimants to evaluate quantum properly, they would need clarification of the liability issues.
The Defendants (Philips Electronics UK Ltd, GE Lighting Ltd, Osram Ltd and Havells Sylvania Ltd together with Recolight Ltd) objected to this application on the basis that the parties had already dedicated resources to investigating quantum, on the understanding that the matter would proceed to a single trial.
The Court found that, in these sorts of circumstances, where it is impossible to draw a meaningful distinction between issues of liability and quantum, a split trial could lead to duplication of costs, rather than a costs saving. The application was therefore dismissed.
In the judgement, Mr Justice Hildyard referred to the necessity of pragmatic considerations; it is a balancing exercise, requiring an assessment of how the case is likely to unfold, as to whether there is or is not a split. Each case should be considered on its own facts, features and peculiarities.
Hildyard J made reference to the case of The Leaflet Company Ltd v Royal Mail Group Ltd  UKCLR 323. In that case, the following determining factors in favour of a split trial were that:
Where liability is complex (and in high value Personal Injury and Clinical Negligence cases, this is largely the case), Hildyard J noted that, in a single trial, adding quantum would increase the burden on the trial judge as well as Counsel and the parties. However, Hildyard J went on to say that, in cases where it is difficult to split out issues of liability from quantum, (indeed where obtaining quantum evidence is likely to overlap with the factual evidence in relation to liability issues), it will be impossible to have a neat distinction between liability and quantum. In this situation, as demonstrated on the facts of this case, there would not be sufficient reason to split the trial “to outweigh the sense and prescribed objective of dealing with as many aspects of the case as possible on the same occasion”.
In summary, Hildyard J suggested a number of factors to consider when determining to order a split trial under CPR 3.1(2) (1). These include (as neatly summarised in PLC – approach to ordering split trials. Resource ID 4-517-3098. Date: 24 Jan 2012):
These are all factors which are relevant to personal injury and clinical negligence litigation and they constitute a helpful “checklist” for the parties – either at the time of the initial Case Management Conference or when debating the relative merits of an application for a split trial.
DA Costa v Oloho & ORS (2012) Lawtel QBD (Admin) 25 May 2012
The Appellant was catastrophically injured in a road traffic accident in 2009, when he was crossing the road and hit by a car driven by the first Respondent, who was uninsured and not qualified to drive. The Appellant landed on the car’s bonnet and the first Respondent accelerated, hitting a stationary car before colliding with a wall. The Appellant was crushed and was left paralysed and blind.
At a case management conference, the Master dealt with a number of matters and ordered that there be a hearing on liability and quantum.
On appeal, the Appellant submitted that the Master had erred in the exercise of his discretion and had given insufficient reasons for his decision. The Respondents submitted that there was no basis to overturn the Master’s Order and that a split trial would mean that some experts would have to be called twice, as their evidence was relevant to both liability and quantum.
It was held that the Master did have in mind the nature of the accident and the particular injuries sustained by the Appellant, and there was a need for one judge to look at the whole matter. The overlap of evidence was, it was held, understood by the Master ie that the experts instructed in relation to the Appellant’s spinal injuries and blindness would be relevant to both liability and quantum. The appeal was therefore dismissed and it was held that the Master had exercised his discretion correctly. Further comment was made that Appellate Courts should be slow to interfere with case management decisions.
Impact on the future
Clearly, the overlap of issues and the necessity for a degree of duplicated evidence is likely to be a common feature in Clinical Negligence and high value Personal Injury cases. Indeed, in clinical negligence cases, whilst the task is not always complex, it is almost always necessary to be able to differentiate the consequences of the negligence from the consequences of the underlying injury. Causation of some injury and the extent of that injury are inextricably linked
The current changes to the funding of Clinical Negligence and Personal Injury cases make the future difficult to predict. The desire for certainty about liability, at the earliest opportunity, remains. Coupled with the pressures (on Court time as much as anything else) of costs budgeting, split trials may well be on the increase. Nonetheless, those acting for Claimants will need carefully to evaluate the advantages and disadvantages. Importantly, they will need to decide how to manage the risks of a Part 36 offer, including:
Beyond that, in terms of practical considerations, it is, as always, clear that, when appearing before a Master, either at a Case Management Conference or on an application for a split trial, analysis of the particular circumstances of the case against the criteria identified by the Courts is going to be key to the decision that is made about a split trial.
This article was first published in Personal Injury Lawyers Journal, and has been reproduced with the kind permission of the copyright owner. This article must not be further reproduced without permission of the copyright owner or the Copyright Licensing Agency.
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