Clinical negligence & personal injury claims: Split trials – A Look to the Future

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?

• Split trials are often seen as being quicker and cheaper than a combined trial at the end of a case. The parties can focus their investigations on the specific issues under consideration, and reach the “win/lose” point more quickly.
• Where liability and quantum are dealt with separately, there is certainty as to the eventual outcome of the case. Where liability is established against the Defendant, the Claimant can focus on quantification of the case without further distraction from issues of breach of duty and, in large part, causation.
• Where the claim succeeds on liability, it is often possible to avoid a quantum trial and damages can be settled out of Court. There is increased emphasis on ADR and settlement meetings, with the parties keen to resolve the case as swiftly as possible.
• Budget constraints mean there has never been a more pertinent time to seek to keep Court costs to a minimum. Separating liability and quantum is traditionally seen as making better use of Court time and resources.
• Even where a claim does not succeed, an earlier trial on liability alone enables the Claimant to know that at an earlier stage
• Once liability has been decided in the Claimant’s favour, whilst the quantum hearing is awaited, interim payments can be ordered to enable the Claimant to obtain assistance to meet ongoing needs for care, therapies and more suitable accommodation.

​Alternatively, what are the disadvantages of a split trial?

• In contrast, although a split trial can be considered to speed up the “win/lose” decision, having separate liability and quantum hearings does prolong the overall duration of a claim and, accordingly, risks increasing rather than decreasing the costs of litigation.
• In particular, the risk of duplicated costs is considerable. Often, causation arguments are intrinsically linked to issues of condition and prognosis and it can prove difficult to split the issues clearly for liability and quantum purposes. Expert evidence often overlaps, resulting in increased costs overall.
• Although interim payments can offset the delay in the final quantification of the claim, the use to which compensation funds are put has not been scrutinised or sanctioned by, respectively, the Defendant or the Court at the time the interim payment is made and the Claimant must carry the risk of not, ultimately, recovering the expenditure.
• For Claimants, Court hearings are stressful and a decision in favour of a split trial potentially exposes the Claimant to two formal Court hearings, both involving sensitive and personal issues.

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 [2012] 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.

• Amendments to CPR 36.13 have caused confusion over costs orders in a split trial. Under revised CPR 36.13, the fact that a Part 36 offer has been made must not be communicated to the trial judge until the case has been “decided”. Unlike the previous wording, there is no clarity about when, in the case of a split trial, the judge will become aware of a Part 36 offer. Recent case law suggests this issue is far from straightforward.

​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 [2012] 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 [2009] UKCLR 323. In that case, the following determining factors in favour of a split trial were that:

1. The boundaries between liability, causation and quantum were tolerably clear;
2. There were no significant issues of causation that could not safely be left to be dealt with at a second stage or trial;
3. The trial slot and date would be likely to be lost if no split was made;
4. A split would ease the burden on the judge at trial, given that the infringement liability issues were “heavy enough” and, perhaps most important of all;
5. There were 16 allegations of infringement, leading to what the chancellor described as “an over-large number of possible permutations”, such as both to complicate the expert evidence and increase the likelihood of the experts and the Court having to address a number of permutations that never in fact would arise according to whatever might be the determination on liability. “

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):

1. The defining of the split;
2. The overriding objective;
3. Prejudice to the parties;
4. The risk of duplication, delay, unnecessary complexity and a bifurcated appeal process;
5. Costs savings;
6. Advantages and disadvantages to trial preparation and management;
7. Inconvenience to witnesses and the judge;
8. The effect on settlement.

​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:

• Careful scrutiny of the terms of a Part 36 offer to ensure that it does comply with the rules. This will be particularly important given the risk that a Part 36 offer will over-ride the costs protection offered by the new Qualified One way Costs Shifting regime;
• Analysis of the Defendant’s costs estimate so as to evaluate the true extent of exposure that relates to the risk of failing to beat a Part 36 offer;
• Balancing the potential need for insurance to cover a Part 36 risk against the largely irrecoverable nature of the insurance premium in the new costs regime;
• Identifying the extent of any quantification that can and should take place prior to the liability decision.

​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.