Cork Plastics and Others v Ineos Compound UK Ltd & Flopast Ltd v Cork Plastics

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 07 March 2008
• Neutral Citation: [2008] IEHC 93
• Court: High Court
• Date: 07 March 2008

Cork Plastics & Ors v Ineos Compound UK Ltd & Flopast Ltd v Cork Plastics

BETWEEN

CORK PLASTICS (MANUFACTURING) AND BY ORDER HAMINEX (IRELAND) LIMITED, CORK PLASTICS, AND CORK PLASTIC SYSTEMS LIMITED

PLAINTIFFS

AND

INEOS COMPOUND U.K. LIMITED (FORMERLY KNOWN AS EVC COMPOUNDS LIMITED) AND BY ORDER TIOXIDE EUROPE LIMITED

DEFENDANTS

AND

BETWEEN

FLOPAST LIMITED

PLAINTIFF

AND

CORK PLASTICS (MANUFACTURING)

DEFENDANT

AND

INEOS COMPOUND U.K. LIMITED FORMERLY KNOWN AS EVC COMPOUNDS LIMITED AND TIOXIDE EUROPE LIMITED

THIRD PARTIES

[2008] IEHC 93

No. 7739P/2001

No. 955P/2005

THE HIGH COURT

Abstract:

Practice & procedure - Order for a modular trial - Principal proceedings - Whether single trial of all issues appropriate - Whether were advantages in having modular trial

Facts: In the substantive proceedings at issue, the plaintiffs claimed damages for the alleged supply of defective commercial products. Numerous parties were involved in the proceedings and the issue arose as to whether it was appropriate to order a modular trial and whether any advantages accrued from the order in light of the procedural challenges at stake.

Held by Clarke J. that the basic conditions for ordering a modular hearing were present. No significant overlap existed as to evidence for each of the modules. There was a strong case for a modular trial and it would be so ordered. If there was a real risk of injustice, the issue could be revisited. Appropriate procedural directions would be made.

Reporter: E.F.

CORK PLASTICS (MANUFACTURING) & ORS v INEOS COMPOUNDS UK LTD & ORS UNREP CLARKE 26.7.2007 2007 IEHC 247

PJ CARROLL & CO LTD & ORS v MIN HEALTH & CHILDREN & ORS 2005 3 IR 457

MILLAR v PEEPLES 1995 NI 6

1. Introduction

2 2 1.1 The first proceedings referred to above ("the principal proceedings") have already been the subject of a number of previous interlocutory rulings and one judgment ( Cork Plastics and Others v. Ineos Compounds and Others [2007] IEHC 247). The principal proceedings, in which the Plaintiffs ("Cork Plastics") generally claim for significant damages arising out of an allegation that they were supplied with defective product which, in turn, caused "pinking" in products produced by Cork Plastics for the building industry, have been under case management for some time. A more detailed description of the issues in the principal proceedings as a whole, and some of the interlocutory issues which have required detailed consideration, can be found in the above judgment.

3 3 1.2 The principal proceedings are now at stage were they are close to trial. It will be shortly necessary to give pre-trial directions. In that context a fundamental difference of view has arisen between the parties as to whether there should be a single trial of all issues or a modular trial whereby all issues of liability and questions of principle concerning the approach to quantum, should first be tried with questions concerning the calculation of any damages which might be due as a result of the first hearing being left over for subsequent determination. The parties filed written submissions and this judgment is directed towards the question raised. In their written submissions (although less so at the oral hearing), the defendants ("Ineos and Tioxide") questioned, at least to some extent, the jurisdiction of the Court to direct a modular trial in the absence of the agreement of all parties. It will be necessary, therefore, to turn to that jurisdiction in early course.

4 4 1.3 It is also necessary to note that there is second set of proceedings in which Floplast Limited ("Floplast") are Plaintiffs ("the Floplast proceedings"). Floplast appears to be in substantially the same beneficial ownership as the various Cork Plastics Companies. Floplast purchased product from the first named plaintiffs in the principal proceedings ("Cork Plastics (Manufacturing)") and claims damages arising out of the same general circumstances as arise in the principal proceedings. Ineos and Tioxide have been joined as Third Parties in the Floplast proceedings and the issues which arise as and between Cork Plastics (Manufacturing) on the one hand, and Ineos and Tioxide on the other hand, in those Third Party proceedings, appear to be the same as those which arise in the principal proceedings. The manner in which those third party issues are to be tried by reference to the trial of the principal proceedings also requires to be determined at this stage.

5 5 1.4 Against that background it is appropriate to turn briefly to the question of jurisdiction.

2. Jurisdiction to Order Modular Trial

2 2 2.1 In P.J. Carroll & Company Limited v. Minister for Health and Children [2005] 3 I.R. 457, Kelly J. observed as follows:-

"The Plaintiffs accept however that there is an inherent jurisdiction which would enable the Court to make an order of the type sought in an appropriate case. In making that concession I believe the Plaintiffs are correct. There is a jurisdiction inherent in the Court which enables it to exercise control over its process by regulating its proceedings, by preventing the abusive process and by compelling the observance of process. It is a residual source of power which the Court may draw upon as necessary wherever it is just inequitable to do so". (At p. 466).

The issue with which Kelly J. was concerned was not a split or modular trial but nonetheless the general principle advanced seems to me to be applicable to the question of the Courts jurisdiction in this matter.

2 2 2.2 In Millar- v - Peeples, [1995] N.I. 6, the Court of Appeal in Northern Ireland accepted that a jurisdiction existed to direct a split trial where it was just and convenient. The Court noted that a broad and realistic view of what is just and convenient should be taken, assessing, as appropriate, questions of the avoidance of unnecessary expense and the need to make effective use of Court time. It was also noted that the Court should balance the advantages or disadvantages to each party and take into account the public interest that unnecessary expenditure of time and money and a lengthy hearing should not be incurred. The Court also noted that undue weight should not be allowed to any tactical advantage which might accrue to either party by the presence or absence of a split trial.

3 3 2.3 It is, therefore, in my view, unnecessary to consider the precise provisions of the rules of Court. The somewhat narrow circumstances in which a formal preliminary issue can be directed under the rules of Court are identified in the jurisprudence with precision for good reason. Experience has shown that the formal separation out of a preliminary issue can often make the apparent shortest route, the longest way home. However the conduct of complex litigation in a modular fashion is not the same thing as the formal separation of preliminary issues. Rather it involves the Court exercising its inherent jurisdiction as to how a single trial of all issues is to be conducted. Is the whole trial to be conducted at one go, or should the Court proceed to hear and determine certain issues in advance of others? Dealing with the single trial in such a modular fashion is simply the exercise by the Court of its inherent jurisdiction to order the manner in which a trial is conducted.

4 4 2.4 Likewise there is a distinction to be made between the formal consolidation of two sets of proceedings (which involve the proceedings being, in effect, turned into a single case), on the one hand, and the linking, for particular purposes, of two cases which have a large overlap, on the other hand. The later simply involves the exercise by the Court of its inherent jurisdiction to order the trial of cases listed before it in a proper fashion. Exactly how such linkage should progress is a matter for consideration on the facts of each individual case. The two cases may be tried one after the other. However, where there is a significant body of evidence which is common to both, it may be that the Court will consider it best to try both at the same time. Precisely how such a situation is addressed is again a matter within the inherent jurisdiction of the Court, which will be dealt with on the basis of the just and convenient test.

5 5 2.5 At the level of principle, I am, therefore, satisfied that I have jurisdiction to direct the way in which both the principal action and the Floplast proceedings are to be tried. I am persuaded that the reasoning of the Court of Appeal in Northern Ireland in Millar -v- Peoples represents the broad approach which should be taken to any such consideration. The Court should determine what is just and convenient by reference to a broad and realistic view which should include the avoidance of unnecessary expense and the need to made effective use of Court time. The Court should accord, in its considerations, due weight to the public interest and should not place over regard on perceived tactical advantages or disadvantages of the parties concerned.

6 6 2.6 Before going on to apply that general principle to the facts of this case it is appropriate to engage in a brief analysis of why most straight forward litigation is unlikely to be justly or conveniently tried in a modular fashion.

3. The Default Position

2 2 3.1 There can be little doubt but that the default position is that there should be a single trial of all issues at the same time. In order to analyse what circumstances might legitimately lead to a proper departure from that position, it is important to start by analysing why it is normally just and convenient to have such a single trial.

3 3 3.2 The perceived advantage of a modular trial is that, if the result of earlier modules goes in one way, subsequent modules may either become unnecessary or may be capable of being dealt...