Split the Trial and Increase the Costs?

One device often used by the Court as a case management tool is to order that rather than having one final trial to resolve all outstanding issues, that there should be a split trial with certain specific items being dealt with on a preliminary basis. 

The idea behind this approach is that to deal with certain specific preliminary matters first results in a far shorter hearing than if all outstanding matters are dealt with simultaneously and can sometimes narrow the issues between the parties and encourage settlement resulting in an overall shortening of the trial length and reduction in costs.

Speaking personally I am always dubious about this approach.  Whilst it can be useful if there is a realistic possibility of a preliminary determination forcing the parties to the negotiating table, there is also a very significant risk that in fact all that will happen is that there will be two lengthy trials rather than one, with a potential lack of continuity due to the risk of a different Trial Judge, non-availability of witnesses etc.  I am pleased to note that in a recent appeal decision, the Court of Appeal has supported these reservations and in an unusual decision by an Appeal Court to overturn a case management decision, has reversed the previous direction for a split trial and warned against the potential perils of such an approach.  

As the Court of Appeal quite rightly stated, if there is a significant overlap between the evidence required to determine the preliminary issue and the remaining issues, to deal with this separately on different occasions, perhaps many months apart, is a recipe for disaster.  The case is Fox & Another v Jewell & Others.  It is always nice to give praise to the Court of Appeal!