Richard Millar, a minor, by David Millar, his father and next friend (plaintiff/ respondent) v Clarke Peeples (defendant/ respondent); Ramesk Kumar Chada, representing all of the members and Committee of Templepatrick School Parents' Association and North Eastern Education and Library Board (defendants/ appellants).

Personal Injury - Minor Road Traffic Accident - "Split trial" - Whether just and convenient to split trial of liability and damages - Avoidance of unnecessary expense - Effective use of court time - Duty of court to look to interests of all parties - Protection of public interest RSC (NJ) Order 33 rule 3.

Judicial Discretion - Powers of appellate courts to interfere with the exercise of judge's discretion - Reasonable danger of injustice sufficient to warrant interference with judge's discretion.

In Her Majesty's Court of Appeal in Northern Ireland (Lord Justice Carswell, Mr Justice Sheil, Mr Justice Girvan); judgement delivered 23 October 1995.

IN considering an application under RSC (NI) Order 33 Rule 3 for an order that the issue of" liability be tried separately from and in advance of that of damages (i.e. an application for a "split trial") the court should take a broad and realistic view of what is just and convenient, including the avoidance of unnecessary expense and the need to make effective use of court time. The court should balance the advantages or disadvantages to each party and take into account the public interest that unnecessary expenditure of time and money in a lengthy hearing should not be incurred.

It is important to appreciate the extent of the power of the Court of Appeal to review the exercise of discretion by judges of other courts and the considerations to which it has regard in doing so. The power of an appellate court to reverse or vary an order of a judge made in the exercise of his discretion is not limited to those cases in which the judge has made an error of law. Review of the exercise of the judge's discretion is justified if there is a reasonable danger that injustice will result from the judge's order. Judicial discretion should be exercised in accordance with generally accepted considerations regularly applied in each case.

The Court of Appeal so held, reversing the order of Mr Justice McCollum on 16 June 1995, and restoring the order of the Master of 1 June 1995 that the issue of liability be tried separately from that of damages.

Rules of Supreme Court (Northern Ireland) Order 33 rule 3 provides as follows:

"The Court may order any question or issue arising in a case or matter, whether of fact or law or partly of law, to be tried before at or after the trial of the cause or matter, and may give directions as to the manner in which the question or issue shall be stated."

Laurence McCrudden BL for the plaintiff/ respondent, Brian Fee BL for the first defendant/ respondent, Robert McCartney QC and David Ringland BL for the second defendant/appellant.

LORD JUSTICE CARSWELL, giving the judgement of the court, said that on 9 September 1989, the plaintiff, then aged 11 years, had been knocked down by a car while crossing the road on his way to a fete organised by the Templepatrick School Parents Association. The plaintiff was grievously injured, being left blind and disabled in a number of respects.

The plaintiff was suing the driver for negligent driving, and the other defendants for negligence in failing to take steps to protect children who might be at risk from traffic in the vicinity of the fete.

The solicitors for the appellants had asked the plaintiff's solicitors to consent to a "split trial" to allow the issue of liability to be tried separately from and in advance of the issue of damages. The plaintiff's solicitors had refused. The solicitors for the appellants had therefore brought an application under RSC (NI) Order 33 rule 3. The Master had granted the application. On appeal the judge had reversed the Master's decision. The appellants appealed to the Court of Appeal. In reversing the order of the Master, the judge had said his main reason for doing so was that the medical evidence might assist the trial judge in determining the issue of liability. This ground had not been advanced before either the Master or the judge, and counsel for the plaintiff had not felt able to support it before the Court of Appeal.

In the affidavit grounding the application for a split trial, the appellants' solicitor had stated that the evidence to be given by the medical witnesses, the educational psychologists, accountants and experts in the costs of care could extend over a period of two or three weeks. On the other hand, a trial of the issue of liability would take no more than two days.

Furthermore, according to the appellants' solicitor, nothing of any significance about the issue of liability could be deduced from the medical evidence. There would be little or no duplication of the evidence on the liability issue and that on the issue of damages.

Counsel for the plaintiff argued that much of the medical evidence might be agreed or uncontested, and therefore the length of the trial on damages was of the order of three or four days. Also, it would be hard on the plaintiff to have to give evidence twice, and if the trial were not split there would be greater incentive for the defendants to settle and save court time. Lord Justice Carswell said that, while the nineteenth century authorities seemed to be against split trials, the English Court of Appeal in the case of Coenen v Payne [1974] 2 All ER 1109 had laid down that the courts should be ready, to order separate trials wherever it is just and convenient to do so.

Lord Justice Carswell said that RSC (NI) Order 33 rule 3 permitted the court to order a split trial in a personal injuries action.

In a suitable case, when deciding whether to order a split trial, Lord Justice Carswell said the court should take a broad and realistic view of what was just and convenient, which should include the avoidance of unnecessary expense and the need to make effective use of court time.

The court was aware of the tactical advantage which a plaintiff obtained from the threat of a lengthy trial. Such a threat could cause a defendant who had a good cause on liability to offer a modest compromise to the plaintiff rather than risk incurring heavy costs. However, Lord Justice Carswell said that the court should not allow undue weight to this tactical advantage to the plaintiff.

The court should balance the advantages or disadvantages to each party and take into account the public interest that unnecessary expenditure of time and money in a lengthy hearing should not be incurred.

Counsel for the respondent urged upon the court the fact that the order made by the judge was made in the exercise of his discretion, and that a discretionary order should not be upset without good cause. The court recognised the force of this argument, but said it was important to appreciate the extent of the power of the Court of Appeal to review the exercise of discretion by judges of other courts and the considerations to which it had regard in doing so.

His Lordship referred to the House of Lords cases of Evans v Bartlam [1937] AC 473 and Charles Osenton & Co v Johnston [1942]AC 130. In the former case the House had rejected the proposition that an appellate court had no power to interfere with the exercise of a judge's discretion unless it thought he had acted upon some wrong principle of law. In that case, Lord Atkin said at pages 480-1 that an appellate court had the power to interfere with the exercise of the judge's discretion if it saw that the judge's decision would result in injustice being done. In these circumstances, the appellate court had both the power and the duty to remedy that injustice.

In Charles Osenton & Co v Johnston Lord Wright had stated that it was unnecessary for the appellate court to find affirmatively that injustice would necessarily result from the judge's order, and said that a reasonable danger of injustice is enough to justify review.

Lord Justice Carswell referred to the case of Ward v James [1966] 1 QB 273, wherein Lord Denning MR, said at page 293 that the Court of Appeal "will interfere if it can see that the judge has given no weight (or no sufficient weight) to those considerations which ought to have weighed with him." He said judicial discretion should be exercised in accordance with generally accepted considerations regularly applied in each case. These considerations could change with time and altered perceptions of public policy.

Lord Justice Carswell said that it appeared that the judge in the instant case had been influenced by a consideration which should have received no weight, namely the possibility that the medical evidence about the plaintiff's injuries might assist the court to determine the issue of liability for the accident. There would be virtually no overlap or duplication of evidence if the trial was split. Whilst not minimising the strain on the plaintiff if he had to give evidence on two occasions, one could hardly suppose that he would be cross examined in a hostile fashion in a case of this nature.

Such factors had to be balanced against the considerable disadvantages which would accrue if the trial were not split. Whatever view one might take of the probable length of the trial on the issue of damages, it was clear that it would be far longer and far more expensive than that on liability. It was insufficient to argue that unless the plaintiff failed altogether on liability, it would have to take place in any event. If the plaintiff succeeded in establishing liability against one or more defendants, they would then, knowing their responsibility for damages, have every incentive to attempt to settle the action before the costs mounted any further.

Therefore, the balance of justice and convenience came down strongly in favour of ordering separate trials of the issues of liability and damages. Accordingly the court was of the opinion that it would be justified in intervening to reverse the judge's decision. Therefore, the appeal would be allowed and the Master's order restored.

Solicitors: John J McNally & Co for the plaintiff/ respondent; Nurse & Jones for the defendant/ respondent; R. B. Campbell & Co for the defendant/ appellants.