Conclusion
61. Although, in fairness, his submission was not advanced on this basis, it appears that the Applicant has endeavoured to propose for trial of preliminary issues the points in the proceedings which he may regard as his strongest points, presumably in the hope that decisions in his favour would enhance his prospect of a successful outcome in the proceedings. While such a rationale may be understandable, such litigious advantages are not the basis on which the Court will determine the appropriateness of the trial of preliminary issues. The Court will only order such a trial where it is satisfied that there are discrete questions of law which can be determined on the basis of agreed or assumed facts, and that the adoption of that course is likely to lead to significant cost and time savings and will not be unfair or unduly prejudicial to any of the parties and that such directions will best serve the interests of justice with regard to the fair and efficient conduct of the proceedings.
62. I am satisfied that the proper resolution of the points raised by the Applicant will in fact require plenary hearing, so the underlying facts and circumstances can be confirmed by oral evidence and cross examination. Once all necessary predicate facts can be determined, the Court can make a fully informed decision, with the benefit of detailed legal submissions on all issues. Unless there is a truly discrete issue, such as a narrow limitation point, then a piecemeal approach is less likely in practice to lead to a comprehensive and fair resolution of the issues and more likely to lead to increased cost and delay.
63. Deferring these issues to the plenary hearing will not be prejudicial from the Applicant's perspective. He will have the full right to call evidence and cross examine opposing witnesses. He can make whatever legal submissions he wishes, in respect of whatever issues he deems appropriate, just as would be the case with any other litigant. However, the most efficient way of bringing this long running litigation saga to a conclusion is at plenary hearing. A single plenary hearing is far more likely to save time and money and, more importantly, lead to a just result than would be the case if I were to direct a preliminary or modular hearing. It seems to me that the granting of the current application (which would necessitate a further - but likely inconclusive - hearing) would not be in the interests of justice or of the parties as a whole and that the proper course is to case manage the proceedings as I have outlined. In this regard, I would have regard to the Supreme Court's reference, in a rather different context, in A.A. v The Medical Council [2003] 4 IR 302 to:
"the rule of public policy "based on the desirability, in the general interest as well as that of the parties themselves, that litigation should not drag on forever..."."
The Court will accordingly case manage the proceedings to ensure the resolution of the outstanding issues without further unnecessary delay. The application will be refused. The Respondents are presumptively entitled to their costs and my initial view is that they should be awarded their costs on a party and party basis, to be adjudicated in default of agreement. However, if any party wishes to contend for any alternative order in respect of costs, then they may file written submissions (maximum length 1500 words) on or before 20 September 2024, failing which the costs will be dealt with on the basis I have indicated.
BAILII: