Possible Preliminary Issues

Other Possible Preliminary Issues in relation to the Technology and Construction Court

[rtbs name=”technology-and-construction-court”]The following can sometimes be resolved by way of a preliminary issue hearing, although a decision as to whether or not to have such a hearing will always depend on the facts of the individual case:

A Limitation Defence

It is often tempting to have limitation issues resolved in advance of the main trial. This can be a good idea because, if a complex claim is statute-barred, a decision to that effect will lead to a significant saving of costs. However, there is also a risk that extensive evidence relevant to the limitation defence (relating to matters such as when the damage occurred or whether or not there has been deliberate concealment) may also be relevant to the liability issues within the main trial. In such a case, a preliminary issue hearing may lead to a) extensive duplication of evidence and therefore costs and b) give rise to difficulty if the main trial is heard by a different judge.

Causation and ‘No Loss’ Points

Causation and ‘No Loss’ points may be suitable for a Preliminary Issues hearing, but again their suitability will diminish if it is necessary for the Technology and Construction Court to resolve numerous factual disputes as part of the proposed Preliminary Issues hearing. The most appropriate disputes of this type for a Preliminary Issues hearing are those where the defendant contends that, even accepting all the facts alleged by the claimant, the claim must fail by reason of causation or the absence of recoverable loss.

‘One-Off’ Issues

Issues which do not fall into any obvious category, like economic duress, or misrepresentation, may be suitable for resolution by way of a Preliminary Issues hearing, particularly if the whole case can be shown to turn on them.