The High Court has ordered a staggered trial in a medical negligence action, with liability to be heard first and any damages assessment to follow if the plaintiff succeeds on liability.
In an ex tempore judgment delivered on 18 February 2020, Ms Justice Niamh Hyland modified the Health Service Executive’s application for a split trial. She directed that the court hear the liability case first and issue a written ruling. No order will be made at that point, so time will not begin to run for an appeal.
If the ruling finds liability in favour of the plaintiff, the quantum trial is to begin immediately or as close to immediately as possible. If the ruling is against the plaintiff, the case before the court will conclude and both parties will be free to take whatever course they consider appropriate. The judgment did not decide liability or damages.
The HSE argued that separating liability and quantum could save time and costs because many witnesses were expected to give evidence only on quantum. Its counsel identified two plaintiff experts on liability and seven witnesses on quantum, while the HSE had three witnesses for each issue. The plaintiff’s counsel disputed part of the witness breakdown and opposed the application, citing prejudice from delay, difficulties rescheduling witnesses and two plaintiff experts expected to address both liability and quantum.
Justice Hyland said a liability finding against the plaintiff would make the time and costs of hearing quantum-only witnesses unnecessary. She also recognised the need to avoid delay in a difficult trial for the plaintiff. The staggered arrangement was intended to balance those considerations.
During the liability hearing, the plaintiff and her husband may give evidence without restriction. The judge noted three other factual witnesses on the plaintiff’s current schedule but said she did not know what evidence they proposed to give. If they seek to testify on liability, she will rule on the matters they may address if necessary. Experts on both sides are to give evidence only on liability at that hearing.
The judge acknowledged that two of the plaintiff’s experts may need to be recalled for a quantum trial and said the additional costs were hoped to be relatively modest. The judgment left open any ultimate appeal the HSE might bring concerning liability and quantum.