Preliminary Issues In General

Preliminary issues in General in relation to the Technology and Construction Court

[rtbs name=”technology-and-construction-court”]The hearing of Preliminary Issues (“PI”), at which the Technology and Construction Court considers and delivers a binding judgment on particular issues in advance of the main trial, can be an extremely cost-effective and efficient way of narrowing the issues between the parties and, in certain cases, of resolving disputes altogether. Some cases listed in the Technology and Construction Court lend themselves particularly well to this procedure. A Preliminary Issues hearing can address particular points which may be decisive of the whole proceedings; even if that is not the position, it is often possible for a Preliminary Issues hearing to cut down significantly on the scope (and therefore the costs) of the main trial. At the first case management conference the Technology and Construction Court will expect to be addressed on whether or not there are matters which should be taken by way of Preliminary Issues in advance of the main trial. Subject to paragraph 8.5 below, it is not generally appropriate for the Technology and Construction Court to make an order for the trial of preliminary issues until after the defence has been served. After the first case management conference, and at any time during the litigation, any party is at liberty to raise with any other party the possibility of a Preliminary Issues hearing and the Technology and Construction Court will consider any application for the hearing of such Preliminary Issues. In many cases, although not invariably, a Preliminary Issues order will be made with the support of all parties. Whilst, for obvious reasons, it is not possible to set out hard and fast rules for what is and what is not suitable for a Preliminary Issues hearing, the criteria set out in Section 8.2 below should assist the parties in deciding whether or not some or all of the disputes between them will be suitable for a Preliminary Issues hearing.

Drawbacks of preliminary issues in inappropriate cases

If preliminary issues are ordered inappropriately, they can have adverse effect. Evidence may be duplicated. The same witnesses may give evidence before different judges, in the event that there is a switch of assigned judge. Findings may be made at the Preliminary Issues hearing, which are affected by evidence called at the main hearing. The prospect of a Preliminary Issues hearing may delay the commencement of Alternative Dispute Resolution or settlement negotiations. Also two trials are more expensive than one. For all these reasons, any proposal for preliminary issues needs to be examined carefully, so that the benefits and drawbacks can be evaluated. Also the Technology and Construction Court should give due weight to the views of the parties when deciding whether a Preliminary Issues hearing would be beneficial.

Staged trials

The breaking down of a long trial into stages should be differentiated from the trial of preliminary issues. Sometimes it is sensible for liability (including causation) to be tried before quantum of damages. Occasionally the subject matter of the litigation is so extensive that for reasons of case management the trial needs to be broken down into separate stages.