The High Court has provisionally directed that liability be heard separately from damages in a long-running dispute over allegedly defective product supplied to Cork Plastics. It also indicated that related liability issues in separate Floplast proceedings should be heard at or immediately after the principal case, subject to any insurmountable preparation problem.
In a judgment delivered on 7 March 2008, Mr Justice Clarke considered how two sets of proceedings should be managed as the principal case approached trial. Cork Plastics alleges that defective product caused “pinking” in goods it made for the building industry. The judgment records that Ineos Compound UK Limited and Tioxide Europe Limited disputed aspects of the case, including the proposed trial arrangement. It does not decide whether the product was defective or whether any party is liable.
The judge held that the court has inherent jurisdiction to control how a trial is conducted, including by hearing issues in stages and coordinating related cases. He said the usual approach is a single trial, but that a modular hearing may be just and convenient where it can save court time and expense. Relevant considerations include the length and complexity of the issues, overlap between witnesses, appeal implications and any risk of unfairness.
On the submissions and issues before him, the judge considered both the proposed liability hearing and any later damages hearing significant. He said the many possible ways liability might be established could require damages to be assessed on different bases. Resolving liability and the principles for calculating damages first could therefore narrow the evidence needed later. He also considered that damages would not readily be assessed if Cork Plastics lost on liability, limiting the appeal-related disadvantage of separate stages.
Ineos and Tioxide argued that credibility issues about the damages claim could affect credibility questions relevant to liability. The judge was not persuaded that the connection showed a real risk of injustice, but deferred a final decision on that concern until witness statements were exchanged. He gave a provisional view in favour of a modular trial and directed that statements be exchanged on that basis, confined to liability issues in the broad sense used in the judgment. Ineos and Tioxide may reapply after exchange, but only on whether the statements reveal a real risk of injustice from a modular trial; the other issues were treated as determined.
For Floplast’s separate proceedings, the judge said the overlapping liability issues should prima facie be tried at or immediately after those in the principal proceedings. He proposed further case-management directions to bring them ready without significant delay to the main case. The judgment set a further meeting for early in the Easter term and expected the parties to agree measures and a witness-statement timetable. It records proposed and provisional case-management decisions; it does not report a final ruling after any reapplication or a determination of liability or damages.