In 2015, the Supreme Court in Campion & ors v South Tipperary County Council upheld a High Court decision that aspects of the plaintiffs’ claim should not be adjudicated on as preliminary issues as they did not have the potential to substantially curtail the length of the total proceedings.

The case concerned a claim for damages in connection with revisions by the local authority to plans to a large scale development in Tipperary. The plaintiff commenced works on the development based on representations from the local authority only to be later faced with a notice from the authority to cease all works on the site. The plaintiff sought to have a number of issues adjudicated on in advance of the main hearing.

In dismissing the applicant’s appeal, the Supreme Court offered significant guidance in respect of such applications. It began be noting that a unitary trial is the default option. It then went on to highlight the various factors a court must consider when a preliminary hearing is sought. These include (but are not limited to):

• There must exist a question of law which is discreet and which can be distilled from the factual matrix as presented;
• The preliminary hearing must result in savings in time and cost in the overall context of the proceedings;
• The greater the impact which a decision on the preliminary issue(s) is likely to have on the entire case, the stronger will be the argument for having a preliminary hearing;
• The making of an order for the trial of a preliminary issue must be consistent with the overall justice of the case and ensure fair procedures for all parties.

It was also emphasised that a court at all times retains a discretion as to whether or not to make such an order.

This jurisprudence was recently applied by the Commercial Court in a case where William Fry acted (C&F Green Energy Ltd & anor v Bakker Magnetics BV). Mr Justice Hedigan restated the principles in Campion and declined to order the trial of a preliminary issue as to the applicability of Dutch law to the claims made by the plaintiffs. Again, the Court was not satisfied that a discreet question of law could be adjudicated on without considering the facts or that there would be any saving of time and cost.

These decisions serve as a reminder of the high hurdle that an applicant will have to meet when seeking to have an aspect of a case heard as a preliminary issue and of the necessity of pointing to the efficiencies a preliminary hearing would bring to the overall case when such an application is made.

Contributed by Adele Hall