The High Court has refused an application by James Elliott Construction Limited to try liability and damages separately in its claim over aggregate it alleges was contaminated with pyrite.
The company says it bought the material from Irish Asphalt Limited and used it in 16 developments, where it alleges damage has occurred or is expected. It alleges deceit against the defendants in connection with the supply of the aggregate. The defendants deny the allegations. The claims have not been determined in this judgment.
The company sought a first trial on liability and causation, followed by a second on the extent of any damage. It argued that assessing its losses would require extensive expert evidence and could take about three weeks. If it failed to establish liability, a separate damages hearing might be unnecessary, saving court time and the parties’ costs. The company withdrew a related request to delay discovery of documents about its claimed losses.
The defendants argued that a split trial would be unfair. They said the credibility of the company’s principal, Mr Elliott, was central to both liability and the claimed losses, and that they should be able to challenge his evidence on both at the same trial. They also argued that evidence about the alleged causes of the company’s business losses would overlap with evidence on liability. Their other objections included the company’s entitlement to equitable relief, its claims for aggravated and exemplary damages, and the practical delay between trial stages if liability were appealed.
In a judgment delivered on 2 November 2016, Ms Justice Costello accepted that the proceedings were complex and likely to require a lengthy trial. She considered that a separate damages hearing might save court time and costs. But she concluded that a split trial would not be just and fair in this case and would unduly prejudice the defendants.
The judge said credibility would be central to the claims and defences, and accepted that removing the quantum issues from the first stage would hinder the defendants’ ability to challenge Mr Elliott’s credibility on liability. She also found that the disputes over clean hands and aggravated and exemplary damages weighed against separating the issues. In addition, she considered it difficult to separate causation evidence from evidence about the amount and nature of the claimed consequential losses, with witnesses likely to overlap between trial stages.
The court refused the application for a modular trial. It did not decide whether the defendants were liable, whether the aggregate was defective, or whether the company suffered the losses it claims.