High Court: Modular trial ordered in ongoing Blackrock Clinic proceedings

About this case:

• Judgment:
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Finding that the extensive use of court resources in this private dispute, and the recusal of a judge previously hearing the case amounted to “special or unusual circumstances”; Mr Justice Michael Twomey said that it was in the public interest for the remainder of the hearing to proceed in the most efficient format of three modules.

Background

In the High Court, Breccia sought an order that the remainder of the proceedings be heard by way of modular trial, which was resisted by Dr Joseph Sheehan who wished for it to be dealt with as a unitary trial.

Blackrock Hospital Limited, George Duffy, Rosaleen Duffy, and Tullycorbett Limited supported Breccia’s application for a modular approach.

Modular or unitary trial

In the leading case on the issue of whether one should have a modular trial or a unitary trial (Cork Plastics v. Ineos Compounds IEHC 93), Mr Justice Clarke referred to the fact that the default position is that there should be a unitary trial but that there are various factors which are relevant to the assessment of whether there should be a departure from the default position.

Of particular significance for the current case was that there may be “a whole range of other special or unusual circumstances that may arise on the facts of any individual case and may need to be given all due weight”.

Justice Twomey said that this was a case involving two special and unusual circumstances that impact upon this Court’s decision as to the format of the remainder of the proceedings:

Extensive use of court resources by the parties to date

Mr Justice Twomey explained that the Commercial Court has at its raison d’être the speedy resolution of commercial disputes, and that the average time from entry of the proceedings to trial commencement is 21 weeks (as per EU Commission Country Specific Report on Ireland - Judicial Appointments (2018))

The present proceedings are now in their fourth year, which Mr Justice Twomey said was an exceptionally long time for this dispute to be still active in the Commercial Court, with a total of 10 court decisions, (six High Court and four Court of Appeal).

While having regard to the right of access to the courts, Mr Justice Twomey said that he also had to “be cognisant to the fact that if even a relatively small number of other litigants used court resources to resolve their private disputes to this extent, the legal system would grind to a halt”

Mr Justice Twomey emphasised the fact that this private dispute had used huge amounts of court resources, and referred to Tracey v Burton IESC 16 in which it was noted that court time is a ‘scarce public resource’ which should not be ‘unnecessarily wasted’. Although this was in the context of lay litigants, Justice Twomey said that the Court said that it was also possible for resources to be wasted by wealthy litigants; and added that the shortage of judges in Ireland meant that it was necessary to ensure Court resources were not endlessly used in the pursuit of private grievances.

Where significant resources were expended to date in the private dispute, Mr Justice Twomey said that one factor in determining the format of the case was how best to use taxpayers’ funds which finance scarce court resources.

Request for recusal of judge previously hearing the case

A second factor, and something which Mr Justice Twomey said could be described as a ‘special or unusual circumstance’, was the fact that there was a successful request for the recusal of the judge previously hearing the dispute.

In January 2018, Mr Justice Robert Haughton recused himself after Breccia made the request based on Justice Houghton’s comment that the company had displayed a “lack of candour” in its application to lift an injunction which prevented Breccia from enforcing Dr Sheehan’s loan. Mr Justice Houghton refused Breccia’s application and said that the real purpose of Breccia’s application was to acquire Dr Sheehan’s shares in BHL.

Mr Justice Twomey said that it was relevant to note that the dispute, which appeared “to have a significant way to go yet”, involved a judge being asked to recuse himself because of his conduct of the trial, and that since this had happened once, the Court could “not rule out the possibility of it happening a second time”.

Modular trial as the best response

Due to the forgoing “special or unusual circumstances”, and particularly the public interest in efficiency of using court resources; Mr Justice Twomey said that the remainder of the hearing should be dealt with in the following modules:

Mr Justice Twomey said that the advantages of this modular format were that: