Should there be a trial of limitation as a preliminary issue?
“..the Court May-
(i) Direct a separate trial of any issue
(m) Take any other step…for the purpose of furthering the overriding objective”Plainly the power exists. It lies within the Court’s general powers of case management and, falls to be exercised at any time when the Court is looking in isolation, or holistically, at the future progression of the case. The guiding principles, (therefore amongst the matters about which the Court will wish to hear), will be those set out at CPR Part 1
- Allocation of resources correctly.
- “potentially decisive” of the entire case; and
- concern “only issues of clear law”.
“Wherever the judge considers it feasible to do so, he should decide the limitation point by a preliminary hearing by reference to the pleadings and written witness statements and, importantly, the extent and content of discovery. In Stubbings v. Webb, for example, the matter was dealt with by the master and the judge as a preliminary issue on affidavit evidence, without cross-examination but with the benefit of discovery. As Bingham LJ commented when the matter was before the Court of Appeal, at 202H- 203A:
“This produces an unusual situation, since the facts pleaded by the plaintiff cannot for purposes of this proceeding be assumed to be true, and they are not common ground. In particular, and this must be emphasised, the Webbs deny the allegations against them. We must, it would seem, like the judge, draw such provisional inferences from the evidence before us as appear to be fair.”It may not always be feasible or produce savings in time and cost for the parties to deal with the matter by way of preliminary hearing, but a judge should strain to do so wherever possible. Where a judge determines the section 33 issue along with the substantive issues in the case, he should take care not to determine the substantive issues, including liability, causation and quantum, before determining the issue of limitation and, in particular, the effect of delay on the cogency of the evidence. Much of such evidence, by reason of the lapse of time, may have been incapable of being adequately tested or contradicted before him. To rely on his findings on those issues to assess the cogency of the evidence for the purpose of the limitation exercise would put the cart before the horse. Put another way, it would effectively require a defendant to prove a negative, namely, that the judge could not have found against him on one or more of the substantive issues if he had tried the matter earlier and without the evidential disadvantages resulting from delay. “ [emphasis added] The section indicates that:
- There is a presumption but, no immutable principle, that limitation be tried as a preliminary issue;
- Matters of costs savings and efficiency will dictate the management of the trial; however
- Whilst considerations will extend to matters such as the need to avoid calling witnesses twice, specific care is required to ensure separate issues, such as breach, are not polluted or conflated with the discrete questions of knowledge.
- There were a large number of overlapping issues and evidence concerning the allegations of abuse and those affecting knowledge;
- There would be very particular stress on the Claimant, in so far as he was called upon to give evidence more than once;
- It would be very difficult in this case to exercise the discretion under section 33 without looking broadly at the merits of the claim. [Forbes v Wandsworth (1997) QB 402 applied]
- There was far too much evidence to master and read to justify treating the question of knowledge separately;
- There were different causes of action within the same piece of litigation and for which knowledge and s. 33 would have to be treated differently and separately considered.
“Wherever the judge considers it feasible to do so, he should decide the limitation point by a preliminary hearing by reference to the pleadings and written witness statements and, importantly, the extent and content of discovery.”KR v Bryn Alyn Community (Holdings) Ltd  3 WLR 107
“While they have their value, it is notorious that preliminary issues often turn out to be misconceived, in that, while they are intended to short-circuit the proceedings, they actually increase the time and cost of resolving the underlying dispute.”Bond v Dunster Properties Limited  EWCA Civ 455 This does not mean that no assistance is to be derived from consideration of the decided cases. They are particularly helpful in identifying and articulating the types of factors which may fall to be considered in any given case.
“It does, however, mean that I reject the defendant’s contention to the effect that any party opposing an application for the hearing of a preliminary issue in a case such as the present bears a burden of persuasion. The balancing act is one which should be approached from the outset with an open mind.”Of particular note to the judge were: the strength and scope of the limitation defence There was strong indication of evidential prejudice in “a significant proportion” of the claims, but not all. But: “Other salient considerations fall to be taken in to account” costs
“I readily accept that questions of costs are, potentially, of considerable importance in the context of the determination of the merits of embarking on the hearing of a preliminary issue in any given case. Care must be taken, however, to identify whether the hoped-for savings may be more apparent than real.”It was plain that Turner J did not think “determination of the limitation issue in selected lead cases would be likely to catalyse the early resolution of a high proportion of other claims”, even those where limitation was also an issue. This was plainly because there would have been no resolution of questions of law determinative of those cases, where each case would be largely dependent on its own facts. “Moreover, the costs of hearing preliminary limitation issues are likely to be out of proportion to the perceived benefits. Even on the defendant’s estimate, the determination of such issues will take many days and I accept the claimants’ contention that it would probably be necessary to hear live evidence in any given case from: claimants, family members, union officials and/or, potentially, from legal or medical advisers. I am also persuaded that there is likely to be a significant overlap between the evidence which would have to be explored on the limitation issues and that which would have to be considered in the context of substantive liability. delay “A further adverse consequence of ordering the hearing of preliminary issues in this case is the likelihood of delay. ..The defendant concedes that a delay of at least six months is likely. That may well be an unduly optimistic prediction….The length of any hearing of preliminary limitation issues would, in itself, be measured in weeks” There was a likelihood some claimants would not live to see the outcome of their cases proper if limitation were tried. fairness to the defendant The defendant also identified the conflicting tactical difficulties, both for itself and for the court in trying all issues together. Its objectives being
- To maximise the extent of the evidential prejudice it has suffered in order to win on the limitation issue; or
- To minimise the extent of the evidential prejudice it has suffered in order to win on the substantive defence.
“The contrary argument is that a court adjudicating upon the issue of limitation will be in the best position to strike the requisite balance between the respective positions of the parties if it has available to it all the evidence which would otherwise be necessary upon which to make a substantive determination. So long as the court rigorously follows the proper sequence of analysis, the result will be fair to both sides”Naturally, in tribunals less familiar with the questions under ss11-14 & 33, that meticulous approach is arguably less likely in reality and, more a theoretical ideal. This will be a difficult matter to convey diplomatically but a point of some validity. In B v Nugent Care Society  1 WLR 516, Lord Clarke MR, who gave the judgment of the court, observed at paragraphs 21-22 that the judge who has to determine the issue as to whether the primary limitation period should be disapplied:
“…may well conclude that it is desirable that such oral evidence as is available should be heard because the strength of the claimant’s evidence seems to us to be relevant to the way in which the discretion should be exercised. We entirely agree with the point made at vii) that, where a judge determines the section 33 application along with the substantive issues in the case he or she should take care not to determine the substantive issues, including liability, causation and quantum before determining the issue of limitation and, in particular, the effect of delay on the cogency of the evidence. “proportionality The defendant urges me to have regard to the fact that the individual claims are likely to be of relatively low value and thus the value of hearing limitation as a preliminary issue is greater. However, as I observed in Pearce v The Secretary of State for Business, Energy and Industrial Strategy  EWHC 2009 at para 69: “The defendant raises the additional argument that the potential value of Mrs Nicholls’ claim is disproportionately low when compared to the costs involved in litigating it. I am not impressed by this contention. As the claimants rightly point out, the Court, when deciding whether to make a GLO, had to consider the issue of proportionality. A key purpose of a GLO, as recognised by the Final Access to Justice Report (July 1996), quoted in the White Book at 19.10.0 (p.657) is to “provide access to justice where large numbers of people have been affected by another’s conduct, but individual loss is so small that it makes an individual action economically unviable.”” Again that would not mean in a case with a single claimant, such a consideration would not be otherwise decided or emphasised differently. disclosure Whilst Turner J did not accept any benefit accrued in the instant case in terms of savings on disclosure, limiting disclosure to matters relevant to limitation in a single claimant / single issue case with historic allegations, may offer dividends. The overriding objective was not, in his judgment, satisfied. It is implicit in his approach that, whilst the factors to be considered were set out, that approach or outcome was not determinative or of binding type. Other Guidance? Jackson LJ in the 2017 “Review of Civil Litigation Costs: FRC” Indicated Interim applications and preliminary issues. The costs of any applications properly made (e.g. because the other party is in default) should be recovered separately. There are fixed costs for such applications under CPR rule 45.29H. I propose that in NIHL and Band 4 cases, the provision in CPR rule 45.29H(1) “one half of the applicable Type A and Type B costs” should be amended to “two thirds of the applicable Type A and Type B costs”. The fixed recoverable fee for an interim injunction application should be £750. Preliminary issues. The costs of any preliminary issue trials should be recovered separately. Having said that, absent special circumstances, I strongly discourage the ordering of preliminary issue trials in the fast track. In some parts of the country, apparently, it is the practice to try limitation as a preliminary issue in ELD claims. This is generally unwise for four reasons: (i) There is much overlap of evidence between limitation and liability. (ii) The litigation will get hopelessly bogged down if the limitation decision goes on appeal. (iii) To have two trials of a fast track case drives up costs and is disproportionate. (iv) If the claimant wins on limitation and then loses on liability, the first trial has been a waste of time. The review was concerned with management of fast track trials. Plainly within that, disease cases were regarded separately and within that, equally NIHL claims treated differently due to their often-modest value. However, the position remains:
- The CPR and FCR does treat and ‘reward’ disease claims differently;
- The review was linked to whether costs of the preliminary issue should form part of the FCR. They did not but;
- The review suggested that if preliminary trials were to be allowed, then the same fees as for post-litigation costs should be allowed;
- Many of the proposals were simply not implemented, most notably what would have been an increase on advocacy fees!
- Multi-track matters are excluded. Value is but one factor in determining whether a case is FT or MT [CPR 26.8(1)(a)-(i)]
- It is not the fault of litigants in NIHL cases that damages are exceptionally modest. Little prevents the court from managing costs against the backdrop of its general wide discretion where the FCR does not apply.