Electrical Waste Recycling Group Ltd & Anor v Philips Electronics UK Ltd & Ors (Rev 1)

On 16 December 2011 I gave an ex tempore Judgment in this matter dealing with the Claimants’ application to amend again their Re-Amended Particulars of Claim and Reply, which I granted, and explaining my reasons for postponing the trial (which had been fixed to commence in May 2012) until January 2013.

It remains for me to rule on the second part of the Claimants’ amended application notice issued 30 November 2011, their application for a split trial, or more precisely (and I quote the terms of the amended application notice) that the issue of the Claimants’ quantum of damage resulting from the alleged infringements of competition law be determined separately from the trial of the other issues. I deferred my decision on this aspect, in light of the lateness of the hour at the end of the hearing last term and in order to enable me to reflect more on the competing arguments of each side. It has also given me the opportunity to consider more closely a useful tabulation of the quantum issues arising which at my request the Claimants provided to me, and the Defendants then commented upon. This, therefore, is my judgment on this second part of the Claimants’ amended application notice.

The power to direct a separate trial of any issue is particularly identified and expressed in paragraph 2(i) of Rule 3.1 of the Civil Procedure rules 1998, which deals with the Court’s powers of case management. The discretion conferred by that Rule must be exercised in accordance with the overriding objective set out in CPR Rule 1.1; and the Court’s duty to further the overriding objective includes the duty to actively manage cases before it.

CPR Rule 1.4 para 2 elaborates that active case management includes –

“(h)

considering whether the likely benefits of taking a particular step justify the costs of taking it; and

(i)

dealing with as many aspects of the case as it can on the same occasion.”

Where the issue of case management that arises is whether to split trials the approach called for is an essentially pragmatic one, and there are various (some competing) considerations. These considerations seem to me to include whether the prospective advantage of saving the costs of an investigation of quantum if liability is not established outweighs the likelihood of increased aggregate costs if liability is established and a further trial is necessary; what are likely to be the advantages and disadvantages in terms of trial preparation and management; whether a split trial will impose unnecessary inconvenience and strain on witnesses who may be required in both trials; whether a single trial to deal with both liability and quantum will lead to excessive complexity and diffusion of issues, or place an undue burden on the Judge hearing the case; whether a split may cause particular prejudice to one or other of the parties (for example by delaying any ultimate award of compensation or damages); whether there are difficulties of defining an appropriate split or whether a clean split is possible; what weight is to be given to the risk of duplication, delay and the disadvantage of bifurcated appellate process; generally, what is perceived to offer the best course to ensure that the whole matter is adjudicated as fairly, quickly and efficiently as possible.

Other factors to be derived from the guidance given by CPR Rule 1.4, which reflect a common sense and a pragmatic approach, may include whether a split would assist or discourage mediation and/or settlement; and whether an order for a split late in the day after the expenditure of time and costs might actually increase costs.

All these sorts of factors seem to me to be potentially relevant and need to be taken into account in what is essentially a pragmatic balancing exercise in assessing how the case is likely to unfold according to whether there is or is not a split.

It follows that each case falls to be assessed by reference to its own facts, features and peculiarities. Further, the assessment has to be made before the Court can responsibly take any reliable view as to the prospects of success, and thus as to whether quantum will be a live issue or not.

Given the variety of circumstances, and the nature of the approach required, little definitive guidance can sensibly be culled from the cases beyond generalities such as I have expressed, except that experience has confirmed the importance of ensuring that there be careful demarcation, in the event of an order for a split trial, of the boundary between the two in terms of the issues to be deal with at each stage (and see per Morgan J in Bookmakers’ Afternoon Greyhound Services Ltd and Others v Amalgamated Racing Ltd and Others [2008] EWHC 2688 (Ch), approved by the Chancellor, Sir Andrew Morritt CVO, in The Leaflet Company Ltd v Royal Mail Group Ltd [2009] UKCLR 323) .

However, such cases do assist to prompt consideration of particular issues and to build up by experience a check list of matters that may be relevant. Thus, for example, the determining factors in favour of a split trial in The Leaflet Company case were that (a) the boundaries between liability, causation and quantum were tolerably clear (b) there were no significant issues of causation that could not safely be left to be dealt with at a second stage or trial (c) the trial slot and date would be likely to be lost if no split was made (d) a split would ease the burden on the Judge at trial, given that the infringement liability issues were “heavy enough” and, perhaps most important of all (e) there were 16 allegations of infringement, leading to what the Chancellor described as “an over-large number of possible permutations”, such as both to complicate the expert evidence and increase the likelihood of the experts and the Court having to address a number of permutations that never in fact would arise according to whatever might be the determination on liability.

Some of these considerations obviously arise in the present case. For example, as in that case, so in this, the liability issues are complex; to add quantum will increase the burden on the trial judge as well as Counsel and the parties. Proliferation of issues can indeed lead to a lack of focus, as well as wasted expense. As always, if the Claimants fail, then time and money spent on quantum will be lost.

Other considerations relevant in The Leaflet Company case do not arise. For example, now that the trial date in May 2012 has been lost already, there is no reason why the decision should affect the new trial date. Further, I am not persuaded, despite a most useful analysis in the Claimants’ schedule, that the exercise of demarcating the boundaries will be as neat as is appropriate.

In particular, I am not persuaded that the separation of causation from liability is realistic in a case (such as this) where, at least arguably, the evidence required to consider quantum is likely to overlap with the factual evidence in relation to liability, and where (as I understand from the Defendants may be true in this case) some of the same witnesses in the first part may have to be involved in the second part.

To illustrate this, I append to this Judgment the Schedule prepared in this case, showing the competing views of the parties in this context as to the likely overlap. I do not think I need to decide in respect of each separate category which of the parties is right. In some categories (category 1 is an example) there may well be less overlap that the Defendants maintain; in others (category 4 is an example) it seems to me that overlap on the issue of causation is likely. Suffice it to say, that a split seems to me to be unlikely to be neat, and may well lead to argument which in turn is expensive in time and money.

Taking all the above considerations into account (and with the sort of factors I have adumbrated in paragraphs 4 and 5 well in mind), I have eventually concluded that, as matters stand, there is not sufficient reason to split this trial to outweigh the sense and prescribed objective of dealing with as many aspects of the case as possible on the same occasion.

Of particular influence on my thinking have been the following: (a) my sense that the boundaries will become difficult to draw and abide by, especially on issues of causation; (b) the likely overlap of evidence accordingly; (c) the likelihood that quite a lot of expert work has already been done (given what was a fairly imminent trial on the original time-table); (d) the fact that under the new time-table there is presently no reason to suppose that quantum cannot be accommodated; (e) the comparatively narrow range of issues (though I accept they are individually complex); (f) my assessment that the permutations will be limited, and the quantum of the separate claims will not be dependent on other claims and can be individually addressed; (g) my concern about further delay before final resolution and also a bifurcated appeal process; and (h) my impression that mediation may be assisted by the parties having to bring more certainty to the money at stake; (h) generally, my feeling that the overriding objective is likely to be furthered by a single trial.

Accordingly, I dismiss the application for a split trial.