Reducing The Cost And Inconvenience Of Litigation - Modular Or Split Trials

Author:Mr Stephen O'Sullivan
Profession:Stephen O'Sullivan, Barrister

A party may apply to have a trial split into parts- called split trials or modular trials. This is usually in order to save costs or to avoid inconveniencing witnesses. The most common application is for liability to be determined before quantum or the Statute of Limitations to be determined before the other issues. In commercial cases, because the trial might last 20 days plus, a party might seek to have some facts determined first, perhaps giving them a chance to settle if they lose that module. Also, if modular trial is ordered, there might be reduced scope for discovery before that module thereby reducing costs.

This is well dealt with in Civil Procedure in the Superior Courts Delany & McGrath (paras. 14-43, 29-30) for the period up to December 2011. This article addresses some important caselaw since then.

Order 25 of the RSC allows a party to apply to have a point of law determined prior to the hearing.

Order 34 of the RSC allows the same but based on agreed facts. This would usually involve the defendant conceding the facts pleaded by the plaintiff for the purpose of the preliminary hearing and seeking a determination that the plaintiff must fail in the action by reason of the law. In Smyth v. An Garda Siochana (Unreported High Court 16/5/13) the plaintiff sued for negligence against the defendant and the court agreed to put the issue of whether the defendant owed a duty of care in the circumstances to preliminary hearing, with the defendant agreeing the facts in the statement of claim for the purpose of that hearing. The court was not willing to put the issue of the Statute of Limitations to preliminary hearing as it would require evidence.

O.63.A.r.6.1.ii provides the Commercial Court may fix any issues of fact or law to be determined in proceedings on a modular basis.

Separate to these provisions, a party may apply for points of law or point of fact to be decided prior to the hearing pursuant to the court inherent jurisdiction. The court has stated in the cases below that the default position is for one trial. The court will only order modular trials if there are compelling reasons for it.

In Weavering v. Macro Fixed Income Fund Ltd. (Unreported Supreme Court 4/12/12) the Supreme Court overturned the High Court's direction for a modular trial. The plaintiff was suing the defendant for negligent accounting services arguing that the defendant overstated net asset value of the plaintiff company resulting in a loss to investors.


To continue reading