Ian O'Connell (A Minor) Suing by His Father and Next Friend Michael O'Connell v National Parks and Wildlife Service, The Commissioner of Public Works in Ireland, Minister for Culture, Heritage and The Guide., Minister for Finance, Ireland and The Attorney General

JurisdictionIreland
JudgeMr Justice Cian Ferriter
Judgment Date11 March 2022
Neutral Citation[2022] IEHC 139
CourtHigh Court
Docket NumberRecord number 2018/11232p
Between
Ian O'Connell (A Minor) Suing by His Father and Next Friend Michael O'Connell
Plaintiff
and
National Parks and Wildlife Service, The Commissioner of Public Works in Ireland, Minister for Culture, Heritage and The Guide., Minister for Finance, Ireland and The Attorney General
Defendants

[2022] IEHC 139

Record number 2018/11232p

THE HIGH COURT

Personal injuries – Damages – Liability – Defendants seeking an order directing that the trial of the plaintiff’s claim be heard in two separate modules – Whether there was a logical division of the case into modules which could realistically lead to saving of time and costs

Facts: The plaintiff, Mr O’Connell, claimed damages for personal injuries sustained as a result of a cycling accident that occurred in August 2017 in the grounds of Killarney National Park. The defendants, National Parks and Wildlife Service, the Commissioner of Public Works in Ireland, the Minister for Culture, Heritage and the Guide, the Minister for Finance, Ireland and the Attorney General, applied to the High Court seeking an order directing that the trial of the plaintiff’s claim be heard in two separate modules, the first dealing with liability and, the second, if it arose, dealing with assessment of damages. The defendants contended that a unitary trial would take four to five weeks with the liability issues likely taking no more than one week of that time. They submitted that this case was particularly suited to a modular trial because, while the issue of liability could be disposed of in one week of Court time, the damages assessment phase of the case (if reached) would be lengthy and complex, in their view taking up to 3 to 4 weeks of Court time i.e. at least three times longer than the liability phase. The defendants contended that as there was no issue of causation (unlike in many serious personal injuries actions), there would be no overlap of witnesses between the two proposed modules, apart from the plaintiff himself (and, possibly, his parents). Accordingly, they submitted, this was a case where, to apply the two principal considerations to be taken into account, per Clarke J in Donatex v Dublin Docklands Development Authority [2011] IEHC 538, there was a logical division of the case into modules which could realistically lead to saving of time and costs and there was no true prejudice to the plaintiff.

Held by Ferriter J that, on the facts of the case, there was a very clean division in terms of legal issues, range of evidence and likely witnesses as between the liability aspect of the proceedings and, if it arose, the assessment of damages. He held that, in light of the comparative likely length of the two modules, there was a clear potential for very significant savings in the parties’ costs and Court time. He held that there was no material downside from the plaintiff’s perspective to such an approach. If he won the liability module, in light of the Cork Plastics mechanism (Cork Plastics v Ineos Compound UK [2008] IEHC 93) which Ferriter J proposed to put in place, he would proceed without delay to have his damages assessed; if he lost the liability module (including after any appeal), he would be spared the very significant cost and time of an assessment hearing which would have proved unnecessary.

Ferriter J granted the relief sought and ordered that the trial of the plaintiff’s claim be heard in two separate modules, the first being a liability module and, dependent on the outcome of the liability module, the second module dealing with assessment of damages. In order to minimise any potential prejudice to the plaintiff, in the event that he was successful on liability, by the delay that would be caused by an appeal from a liability determination before quantum matters were addressed, it seemed to Ferriter J that this would be an appropriate case for the trial judge to deploy the mechanism suggested by Clarke J in Cork Plastics, i.e. for the court to refrain from drawing up any orders as to the liability issue until the conclusion of the quantum hearing so that, in the event that the plaintiff was successful in the liability module before the High Court, the plaintiff could then proceed to have his quantum hearing before one final order was drawn and in respect of which time limits for appeal would then run (and any appeal would relate to both liability and quantum issues). Ferriter J made his order for a modular trial on the basis that the defendants would not seek to contend for the contrary before the trial judge. Subject to hearing from the parties to the contrary, Ferriter J proposed making the costs of the application costs in the cause.

Application granted.

Judgment of Mr Justice Cian Ferriter delivered this 11th day of March 2022

The application
1

In this application, the defendants seek an order directing that the trial of the plaintiff's claim be heard in two separate modules, the first dealing with liability and, the second, if it arises, dealing with assessment of damages.

The proceedings
2

In these proceedings, the plaintiff claims damages for catastrophic personal injuries sustained as a result of a cycling accident that occurred in August 2017 in the grounds of Killarney National Park. As a result of the accident, the plaintiff was rendered tetraplegic and has suffered devastating and life-altering injuries which will require lifelong treatment.

3

The defendants have filed a full defence. The defendants deny that the plaintiff was a “visitor” within the meaning of the Occupier's Liability Act, 1995. In particular, the defendants say that the plaintiff was a “recreational user” within the meaning of the Occupiers Liability Act, 1995 as amended and cannot demonstrate “reckless disregard” for his safety on the part of the defendants. A further issue arises as to whether the accident locus constituted an allurement. It is clear that there is going to be a full fight on liability.

The law
4

The principles governing the exercise by the court of its jurisdiction to direct a modular trial of proceedings have been extensively explored in the authorities in recent years.

5

It is clear that the starting point is a presumption that there will be a unitary trial and that the onus is on the applicant to demonstrate why a modular trial would be more consistent with the efficient administration of justice than a unitary trial in the circumstances of the case.

6

Charleton J. in McCann v Desmond [2010] 4 IR 554 (“ McCann v Desmond”), in a passage approved by Clarke J. (as he then was) in the Supreme Court decision in Weavering Macro Fixed Income Fund Ltd v PNC Global Investment Servicing (Europe) Ltd [2012] 4 IR 681 at 696, set out the test as follows:

  • “(1) Are the issues to be tried by way of a preliminary module readily capable of determination in isolation from the other issues in dispute between the parties? A modular order should not be made if the case could be characterised as an organic whole, the taking out from which of a series of issues would tear the fabric of what the parties need to litigate, so that the case of either the plaintiff or the defendant would be damaged through being seen in the isolated context of a hearing on a number of limited issues.

  • (2) Has a clear saving in the time of the court and the costs that the parties might have to bear been identified? The court should not readily embark on a modular hearing simply because of a contention that a saving in time and costs has been identified, but rather it should view that factor in the context of the need to administer justice in the entire circumstances of the case.

  • (3) Would a modular order result in any prejudice to the parties?

  • (4) Is the motion a device to suit the moving party or does it genuinely assist the litigation by being of help to the resolution of the issues”

7

It is common case that point 4 above (i.e. the motion being a device) has no application to the facts here.

8

In Cork Plastics v Ineos Compound UK [2008] IEHC 93 (“ Cork Plastics”), Clarke J. (as he then was) considered the factors to be considered when determining whether to allow a modular trial. Clarke J. cited “ the complexity and length of the likely trial” as the “first and most obvious factor” to be taken into account.

9

Clarke J. then addressed other factors that might be taken into account (from paragraphs 3.9 to 3.14 of his judgment). These can be summarised as:

  • (i) the impact of an appeal from a module on the overall duration of the case;

  • (ii) the need to insulate a party who is involved with only some of a wide range of issues from the expense and time of having to attend a lengthy trial;

  • (iii) whether there are a variety of approaches to damages depending on how liability is determined;

  • (iv) the likely relative length and complexity of the respective modules which might be proposed;

  • (v) the prejudice to a party (as opposed to a perceived tactical advantage);

  • (vi) whether there is potential for doubt as to the boundaries delineating the modules;

    and

  • (vii) the extent to which there might be significant overlaps in the evidence or witnesses that would be relevant to all modules.

10

In discussing the factor of the likely relative length and complexity of the respective proposed modules, Clarke J., in a passage particularly relevant to the facts of these proceedings, stated as follows (at paragraph 3.11):

“…taking the simple division between liability and quantum as an example, it would seem unlikely that any sufficient advantage could be found in a modular trial where the...

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