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Modular Trials: New Rules and Old Guidance
PRACTICE AREA GROUP: Commercial Litigation and Dispute Resolution
The Irish courts have recognised the possibility of modular trials, where a specific or discrete module of the proceedings might be tried in and of itself, independently of any other aspects of the proceedings, as being appropriate in certain circumstances. While the adoption of case management powers under the Commercial Court Rules in 2004 might be seen as the genesis of the modular trial,(1) cases have subsequently recognised that the Irish courts have a general and inherent jurisdiction to order their own business.(2) New court rules which come into force in October 2016 formally set out the jurisdiction of the High Court to direct modular trials. It is thus worthwhile to consider the factors likely to be considered if a modular trial is proposed as part of a case.
Statutory Instrument 254 of 2016, which will apply from October 1 2016, makes various amendments to the Rules of the Superior Courts relating to the conduct of trials.(3) One of the changes is to give express empowerment to the High Court in any case to direct that certain questions or issues of fact be tried before others and that the trial be conducted in modules with questions of fact, or fact and law, being the subject of a module, and the sequence of the modules to be determined by the court.(4)
Test for Modular Trials
While the jurisdiction of the Irish courts to direct modular trials has been clarified, the test to determine how the courts should exercise their jurisdiction with regard to directing modular trials has not been addressed in the new rules. Accordingly, it would seem that existing case law which offers guidance as to when and in what circumstances a modular trial might be directed will still be relevant, at least until particular jurisprudence has developed under the new rules, if at all. There have been a number of cases where directing modular trials had been considered by the courts, but a recent case(5) has reviewed and summarised all of the applicable principles into nine essential propositions, as follows:
"1. The court can, in the exercise of its inherent jurisdiction to maintain control over the conduct of trials before it, direct a modular trial where some of the issues are separated out. (Dowling v. Minister for Finance  IESC 32, para 5.1)
2. The conduct of litigation in modular fashion is to be distinguished from the formal separation of preliminary issues. It involves the court exercising its inherent jurisdiction as to how a single trial of all issues is to be conducted, be it (a) at one go (i.e. via a unitary trial), or (b) with the court hearing and determining certain issues in advance of others (i.e. on a modular basis). (Cork Plastics (Manufacturing) v. Ineos Compound UK Ltd  IEHC 93, para 2.3)
3. In deciding whether to order a modular trial, the court should determine what is just and convenient by reference to a broad and realistic view which should include the avoidance of unnecessary expense and the need to make effective use of court time. The courts should accord due weight to the public interest and not place undue regard on perceived tactical advantages and disadvantages of the parties concerned. (Cork Plastics, para 2.5).
4. The default position is that there should be a single trial of all issues at the same time. (Cork Plastics, para 3.1).
5. In any straightforward litigation, and in the absence of some unusual feature, such as, for example, the unavailability of quantum witnesses which might otherwise lead to an adjournment, the risk that the proceedings will be longer and more costly if divided will be seen to outweigh any possible gain in court time and expense in the event that the plaintiff fails on liability. (Cork Plastics, para 3.3).
6. Factors relevant to determining whether to order a modular trial include (i) the complexity and length of the likely trial, (ii) the likely relative length and complexity of the respective modules which might be proposed, (iii) the need to insulate a party, who is involved with some issues only, from the expense and time of having to attend a lengthy trial, (iv) whether the approach to the calculation of damages will differ significantly depending on how liability is made out in the way in which various of defence may be resolved, (v) what is to happen in relation to any possible appeal, (vi) the extent to which there may be overlaps in the evidence that is relevant to the proposed modules, (vii) any real suggestion that true prejudice (rather than a perceived tactical prejudice) might occur by the absence of a unitary trial, and (viii) other special or unusual circumstances that may arise on the facts of any individual case and which will need to be given all due weight. (Cork Plastics, paras 3.4, 3.6 and 3.9-3.14).
7. A court in determining whether or not to order a modular trial can usefully ask itself the following for questions: (i) are the issues to be tried by way of preliminary module readily capable of determination in isolation from the other issues in dispute between the parties? (ii) has a clear saving in the time of the court and the costs of the parties might have to bear in identified? (iii) would a modular order result in any prejudice to the parties? (iv) 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? (McCann v. Desmond  4 IR 554, p. 558)
8. It would defeat the purpose of modular trial if a party could easily for little good reason seek to reopen matters already determined in an earlier module when the court came to consider later modules. (The potential for this latter event to arise will of course impact on the initial decision whether or not to go for modular trial). (Inland Fisheries Ireland v. O'Baoill  IESC 45, para 5.3)
9. Perhaps a point more relevant to the conduct of modular trials than a factor relevant to the determination as to whether to order modular trial, the court should not, without good and strong reason, enable any finding from an earlier module to be revisited as a subsequent module. In particular, the formal findings of the court on the specific issues which were to be, and were, determined on an earlier module should only be reopened in exceptional circumstances. To do otherwise would be to risk procedural chaos and defeat the purpose of a modular trial. (Inland Fisheries Ireland v. O'Baoill, para 5.3) The potential for this last mention predicament may, it seems to this Court, impact on a trial judge assessment, pursuant to McCann, as to whether issues are properly capable of determination in isolation from the other issues in dispute."
It is apparent from existing case law that modular trials constitute an exception to the usual unitary approach to hearings in Ireland. Accordingly, it is only in exceptional cases that a modular trial may be ordered and specific criteria apply to its consideration. The recent High Court decision is a useful synthesis of the applicable principles and, notwithstanding the power of the court to order modular trials under the new court rules, it is likely that the same principles will apply to the exercise of the power to direct them.
(1) Rules of the Superior Courts, Order 63A, particularly Order 63A, Rule 5 and Order 63A, Rule 6(1)(ii).
(2) For example, Weavering Macro Fixed Income Fund Limited (In Liquidation) v PNC Global Investment Services (Europe) Limited  IEHC 25; and Cork Plastics (Manufacturing) v Ineoas Compound UK Ltd  IEHC93.
(3) Rules of the Superior Courts (Conduct of Trials) 2016 – SI 254, 2016.
(4) By way of the introduction of a replacement Order 36, Rule 9 to the Rules of the Superior Courts.
(5) White v Bar Council of Ireland  IEHC 283, Barrett J.
This article first appeared in the International Law Office Litigation newsletter, 28 June 2016.