King's / Queen's Bench Division of the High Court

[2025] EWHC 2621 (KB)

Fecha: 25-Jul-2025

Split Trials

38.

CPR 3.1(2)(j) and (k), give the court the power to direct the separate trial of any issue, and to decide the order in which the issues are to be tried.

39.

The following factors were identified by Hilliard J in Electrical Waste Recycling Group Ltd & Anor v Philips Electronics UK Ltd & Ors [2012] EWHC 38 (Ch) at paragraph 5:

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 a 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.

40.

These factors have been applied in the libel context amongst others, for example, by Master Fonteine in Gubarev v Orbis Business Intelligence Ltd [2019] EWHC 162 (QB).

41.

In a non-defamation context, Peter MacDonald Eggers KC, sitting as a Deputy Judge of the High Court observed in Jinxin Inc v Aser Media Pte Ltd and others [2022] EWHC 2431 (Comm), that a decision to split what would otherwise be a single trial into more than one trial, is a step out of the norm and, accordingly, "There must be a real and substantial advantage if a split trial were ordered to take place" (para 23). At paragraph 26 he said:

"26.

Unless a split trial can be justified as a means of resolving the disputed issues in an action in accordance with the overriding objective, with clear benefits over and above those of a single trial, the peril exists that a split trial will add considerably to the parties' costs burden and delay the conclusion of the action."

42.

In Fallet Daimler AG v Walleniusrederierna Aktiebolag [2020] EWHC 525 (Comm) at paragraph 61, Bryan J warned of the additional delays in costs caused by bifurcated appeals, and the risk that the same judge will not be available for the second trial, adding to the amount of judicial preparation time involved.

43.

In Guy Carpenter and Company Ltd v Howden Group Holdings Ltd [2023] EWHC 1114 (KB), David Lock KC, sitting as a Deputy Judge of the High Court, ordered a split trial of liability and injunctive relief (on the one hand) and quantum (on the other) in a claim for unlawful means conspiracy. The Judge noted at paragraph 26 in respect of Jinxin:

"Those observations were made in the context of applications for an initial trial on a series of discrete issues as opposed to a trial where, in substance, liability and injunctive relief was to be tried first and quantum tried at a later date. There are inherent dangers in having a trial on discrete issues and there have been cases where such trials have led to substantial later problems within litigation. In contrast, split trials between liability and quantum are more common and give rise to those problems on fewer occasions."

44.

In Boyle v Govia Thameslink Railway Limited & Others [2022] CAT 46, the Competition Appeal Tribunal recognised that split trials between liability and quantum can lead to significant cost savings in appropriate cases saying:

"5.

It is common for case management directions to hive off and separate questions of liability and quantum. Causation often floats like an orphan child between the liability and the quantum phases, but in this case all of the parties are agreed that the orphan ought to be adopted by the quantum parent rather than the liability parent, and we agree.

We also agree that the split, the hiving off of quantum so defined, should take place. The reasons why quantum is often hived off are because, as is self-evident, if the liability issues go the way the Class Representative does not want, in other words if the case is lost on liability, no work need be done on quantum and those costs are saved. That is why it is often done, and in this case we are satisfied that the costs of dealing with the quantum stage would not be minimal, they would be considerable; and it is therefore well worth effecting the split."

45.

The Competition Appeal Tribunal went on to decide there should be a split trial, and the quantum trial should include the questions of causation.

46.

The agreed bundle of authorities before me includes a number of defamation cases, where quantum or special damages were split off in the main trial, to be tried later if the claimant succeeded. It also includes cases where an application for a split trial was refused. The examples I was provided with include: Elite Model Management Corporation v BBC unrep. 14 March 2021, Collins Stewart Limited v Financial Times Limited [2005] EMLR 5, Gubarev (which I have already referred to) and Clarke v Guardian [2025] EWHC 142 (KB). I have read each of these decisions, but, largely, they are simply illustrations of the many fact-sensitive considerations that may arise and thus, I do not consider that it is useful for me to refer to the particular circumstances of each case in detail, or to seek to draw analogies or distinctions between those cases and the present circumstances. I do, however, note Eady J's observation at page 19 in Elite Model Management that, "it will generally be necessary for a fair assessment of damages that the tribunal of fact should be the same as that which determined liability."

47.

Mr Speker sought to draw support from a passage in the joint judgment of Chief Justice Brennan and McHugh J in the High Court of Australia case, Chakravarti v Advertiser Newspapers Limited [1998] HCA 37. At paragraph 177 they observed that:

"The assessment of the probabilities in a matter of this kind would ordinarily be left to the trial judge with the advantages usually ascribed to that position where the drawing of inferences is concerned."

48.

However, this was said in the context where the court was finding that the first appeal court (the Full Court of the Supreme Court of South Australia), had erred in overturning certain findings made by the judge who had tried the defamation case. Accordingly, whilst they were recognising the benefits that a trial judge had enjoyed when it comes to assessing the evidence (in that instance, on causation), they were not addressing the merits or otherwise of split trials, still less laying down a general principle that, "where special damages are alleged to arise from a defamatory publication, the assessment of causation is a matter ordinarily left to the trial judge determining liability", as Mr Speker contended in his Skeleton Argument.