Can the new Practice Direction 1A be used to justify a split trial?

A brief summary of the decision in Mr AXX (A protected party) v Zajac [2022] EWHC 2463 (KB)

Background

In 2016 the Claimant was knocked off his bike by the Defendant. It was said that he had suffered a traumatic brain injury and continued to suffer from neuropsychiatric symptoms including psychosis, paranoia, and delusion. The Claimant was refusing to take antipsychotic medication and could not be forced to do so without being sectioned, which wasn’t deemed appropriate in the circumstances. The Claimant’s difficulties also meant that he would not fully engage in medical examinations.

The Claimant had partially engaged with his Neuropsychiatrist whilst other experts found it very difficult or were turned away. Without taking his antipsychotics, his prognosis could only be assessed as guarded. The Defendant denied causation of the psychiatric condition in part because of a history of substance abuse. The Claimant’s representatives argued that a case manager and access to independent medical professionals would assist in helping the Claimant to engage with treatment. With causation disputed, interim payments were not forthcoming.

The Issue

The main issue before the court was whether the new vulnerability provisions in Practice Direction 1A could be used to justify ordering a split trial to deal with causation first.  

The Claimant argued that a split trial would provide the best prospects of getting the Claimant’s evidence before the court.

The Law

CPR 1.1(2) (a) requires the court to ensure, so far as is practicable, that the parties are on an equal footing and can participate fully in proceedings, and that the parties and witnesses can give their best evidence.

Paragraph 5 of Practice Direction 1A states that when considering whether a factor may adversely affect the ability of a party to participate in proceedings and/or give their best evidence, the court should consider their ability to:  

1. Understand the proceedings and their role in them.
2. Express themselves throughout the proceedings.
3. Put their evidence before the court.
4. Respond to or comply with any request of the court or do in a timely manner.
5. Instruct their representative/s (if any) before, during and after the hearings; and
6. Attend any hearing.

Decision

The Judge concluded:

• The vulnerability appeared to impede the Claimant’s participation in proceedings and as such considered PD 1A (5).

• The Claimant’s medical condition and refusal to take his medication made understanding proceedings a real obstacle.

• At the time of the hearing, the Claimant was too unwell to attend any trial meaning there was no proportionate modification to ensure attendance at any hearing.

• The most prominent issues were about putting his evidence before the court and responding to any request of the court at all or in a timely manner.

• The judge agreed that to put the evidence before the court included indirectly so, by way of cooperating with experts for the purpose of expert reports.

The judge concluded that “a split trial on causation, leaving possible quantum of damages for later, was a measure which would be proportionate …..because to enable causation to be resolved would stand a real prospect of enabling the Claimant to place his evidence before the court, by making it more likely he could engage with the experts at quantum stage and by also enabling prognosis to be clearer if and when he is able to be medicated….. That in turn was affected by the potential to obtain an interim payment once liability for substantial damages is established (if it is) at a split trial.”

The judge therefore ordered a split trial.

Conclusion

This case is a good illustration of the interplay between the new Practice Direction 1A and the overriding objective.

It serves as a useful reminder for practitioners to identify vulnerable parties at the earliest possible stage.

The case is also one of the first examples of how the new Practice Direction 1A can be used in practice when considering very practical case management decisions. 

Oliver Bailey is beginning his specialist civil law pupillage under supervision Hylton Armstrong and Bronia Hartley.