Early determination should be considered, but only if conditions are right, says Tom Henderson
One of the underlying themes of Jackson LJ’s final report, is the call for more forceful case management (Review of Civil Litigation Costs: Final Report, December 2009).
The determination of issues at an early stage in litigation by way of a preliminary issues hearing is a common, and sometimes very effective, case management tool. CPR Pt 3.1(2) specifically gives the court the power to determine part of the proceedings separately, by directing the separate trial of preliminary issues. However, a number of decisions in the appellate courts have highlighted failings of preliminary issue trials, which have not had the intended effect. So, what can go wrong in the trial of a preliminary issue? And when should parties and their advisors pursue such early determination?
When deployed correctly, the benefits of a preliminary issues hearing are obvious. Such early determination can decide crucial questions of fact or law, reduce quantum claimed, remove the need for parties to participate
