Howard & Ors v Chelsea Yacht And Boat Company Ltd & Anor [2018] EWHC 1118 (Ch)

[2018] EWHC 1118 (Ch)Case No HC-2017-001398
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Venue Royal Courts of Justice, Rolls Building, Fetter Lane, London, EC4A 1NLDate 16/5/2018
Before
MASTER CLARK
Between
SIMON HOWARDClaimantsAND THE OTHER 60 CLAIMANTSClaimantLISTED IN THE SCHEDULE OF CLAIMANTSClaimantAPPENDED TO THE CLAIM FORMClaimant(1) CHELSEA YACHT AND BOAT COMPANY LIMITEDDefendants(2) THE PORT OF LONDON AUTHORITYDefendant
Philip Rainey QC & Timothy Polli QC (instructed by Hamlins LLP) for ClaimantsZia Bhaloo QC & Paul Jarvis (instructed by Mishcon de Reya LLP) for First DefendantAndrew Bruce (instructed by The Port of London Authority) for Second DefendantHearing Hearing date: 2 May 2018
Judgment ApprovedMaster Clark:
[1]This is the first case management hearing in this Part 8 claim, at which the parties have agreed that I should deal with the following matters:(1) whether to order the trial of a preliminary issue;(2) directions for the hearing of the first defendant’s application for summary judgment and/or to strike out the claim for the Criminal Declaration (defined in paragraph 15 below) (‘the summary judgment application’);(3) directions for the hearing of the first defendant’s application to strike out the claims of certain identified claimants on the grounds that they have no interest in the litigation (‘the strike out application’).

The parties and the claim

[2]Next to Cheyne Walk in London, there are a boatyard and some moorings which are known as “Chelsea Reach”. That part of the Thames is tidal, and therefore it falls under the jurisdiction of the Port of London Authority (‘the PLA’), the second defendant in these proceedings.[3]By a River Works Licence dated 24 May 1989 (“the RWL”), the PLA granted to the first defendant, Chelsea Yacht and Boat Company Limited (‘D1’), “a licence in accordance with section 66 of the [Port of London Act 1968] to retain the Works [being, by way of summary, the moorings, piers, pontoons etc at Chelsea Reach] subject to the conditions and stipulations hereinafter contained for the term [being 58 years] from the commencement date [1 September 1988] (subject to termination as hereinafter provided).”[4]D1 (the ownership of which has changed on several occasions since the grant of the RWL) operates the boatyard and moorings at Chelsea Reach pursuant to the RWL.[5]There are 61 permanent residential berths at the Chelsea Reach moorings. These proceedings concern 50 of those berths at which are permanently moored houseboats either owned or occupied by the claimants.[6]Some of the houseboats moored at Chelsea Reach are there pursuant to formal sub-licences issued by D1 granting the houseboat a licence to remain for a term of years. Others, particularly those claimants who have been resident at Chelsea Reach for many years, either have never had such a formal sub-licence, or their licence has expired.[7]The claimants whose licences continue pay annual mooring fees for their occupation of the moorings. In addition, they pay a maintenance charge – which may be considered the equivalent of a service charge.[8]The claim arises in the following statutory context.[9]Section 70 of the Port of London Act 1968 (“the Act”) includes the following provisions:
“(1) No person shall carry out, construct, place, alter, renew, maintain or retain works unless he is licensed so to do by a subsisting works licence and except upon the terms and conditions, if any, upon which the licence is granted and in accordance with the plans, sections and particulars approved in pursuance of section 66 (Licensing of works) of this Act. (2) A person who contravenes the provisions of this section or who fails to comply with any term or condition upon which a works licence is granted by the Port Authority shall be guilty of an offence and liable to a fine not exceeding level 5 on the standard scale and to a daily fine not exceeding £50.”
[10]The claim concerns two practices of D1:(1) having charged or seeking to charge a premium or licence fee when granting a licence for a term of years (rather than from year to year) to moor at Chelsea Reach; and(2) having included in its mooring licences an option entitling the licensee to renew the licence upon payment of a premium (in addition to the continuing payment of some annual mooring fees).[11]The claimants’ case is that:(1) the two practices set out above are or would be in breach of the terms of the RWL; and(2) these breaches constitute the commission of a criminal offence, contrary to s.70(2) of the Act.[12]The claimants rely upon the following terms in the RWL:(1) a positive obligation owed by D1 to the PLA to grant mooring licences and to charge mooring fees for the use of the berths at the moorings – see para 13(a) of the Second Schedule to the RWL;(2) an obligation by D1 to pay to the PLA, by 4 equal quarterly instalments, an annual licence fee equivalent to 20% of the total annual mooring fees payable to D1 by vessels moored at Chelsea Reach – see paras 1(3) and 2 of the Third Schedule to the RWL;(3) provisions for the annual licence fee payable by D1 to the PLA to be reviewed every 6 years – see paras 1(1) and 2(3) of the Third Schedule to the RWL;(4) an obligation by D1 to provide in the mooring licences granted by it to those mooring boats at Chelsea Reach that there would be periodic reviews of the licence fees payable under those licences, each such review date being one year before the date of the review of the licence fee payable by D1 to the PLA – see para 13(b) of the Second Schedule to the RWL.[13]The claimants’ case is that D1’s practice, when granting a licence for a term of more than one year, of charging a premium by way of a licence fee in addition to the obligation set out in that licence to pay annual mooring fees (at market rate), constitutes a breach by D1 of its obligations under the RWL; and thereby constitutes a criminal offence within s. 70 of the Act, which the Claimants say is an offence of strict liability.[14]The claimants have sought to persuade the PLA that D1 is in breach of the RWL by, amongst other things, charging premiums; but the PLA’s position, as set out in their letter of 8 December 2016 to D1, is that the RWL does not prohibit payment of premiums.[15]The claimants therefore seek in their Details of Claim two declarations, which relate to D1’s past and future conduct:(1) “A declaration that D1’s practice of charging a premium by way of a “licence fee” when granting a mooring licence for a number of years, and of charging a premium upon the exercise of an option to renew a mooring licence for a number of years, constitutes a breach by D1 of the RWL.” (‘the Civil Declaration’);(2) “A declaration that, by reason thereof, charging a premium by way of “licence fee” when granting or renewing a mooring licence for a number of years constitutes a criminal offence contrary to s. 70 of the Port of London Act 1968; or would, if continued constitute a criminal offence contrary to s.70 of the Port of London Act 1968 and hence or would if continued, be illegal.” (‘the Criminal Declaration’).[16]In these circumstances, the issues which arise in the claim are:(1) Whether the claimants have standing to bring a claim, notwithstanding the fact that they are not parties to the RWL;(2) Whether the claimants’ construction of the RWL is correct;(3) If so, whether it is appropriate for the Civil Declaration to be made;(4) If the claimants’ construction of the RWL is correct, whether their contention as to the effect of s.70 of the Act is correct;(5) If so, whether it is appropriate for the Criminal Declaration to be made.[17]The claimants’ position is that the core facts in the claim are proved by contemporaneous documentation and are not the subject of dispute; and that for this reason the Part 8 procedure adopted by them is appropriate. Notwithstanding this, the evidence in support of the claim includes factual evidence as to a number of matters which are irrelevant or marginally relevant (e.g. the conduct of the current owner of D1, Andrew Moffatt, in relation to another mooring site, Cadogan Pier); to which D1 has responded fully.

The preliminary issue

[18]The preliminary issue which D1 seeks to be tried is set out in its application notice dated 31 July 2017: “Whether the court ought to exercise its discretion to grant the second declaration (‘the Criminal Declaration’) sought in the Part 8 Claim Form.” (“the Issue”)

Whether to order a preliminary issue – the test

[19]The Court of Appeal has warned on several occasions of the risks of delay and increased costs resulting from trial of preliminary issues, particularly in complex cases. In Rossetti Marketing Ltd & Anor v Diamond Sofa Company Ltd [2012] EWCA Civ 1021, [2013] Bus L.R. 543, Lord Neuberger described preliminary issues as offering a siren song to the parties. There have been other warnings as well, in the cases of SCA Packaging Ltd v Boyle [2009] UKHL 37, [2009] ICR 1056 and Bond v Dunster [2011] EWCA Civ 455. It is clear from these authorities that I should take a cautious approach to deciding whether to order a trial of a preliminary issue.[20]There are several useful summaries of the factors which the court should take into account in making its decision. These are found in:(1) Section 8 of the Technology and Construction Court (“TCC”) Guide – 2018 White Book, Vol 2, paras 2C-43;(2) Steele v Steele [2001] CP Rep 106 – a decision of Neuberger J, in which he identified 10 factors which could be relevant;(3) McLoughlin v Jones [2001] EWCA Civ 1743, [2002] QB 1312, in which David Steel J set out the following principles: (i) Only issues which are decisive or potentially decisive should be identified; (ii) The questions should usually be questions of law; (iii) They should be decided on the basis of a schedule of agreed or assumed facts; (iv) They should be triable without significant delay making full allowance for the implications of a possible appeal. I have considered this guidance and do not set it out.[21]In addition, I also have in mind the guidance of Briggs J in Lexi Holdings Plc v Pannone & Partners [2009] EWHC 3507 (Ch) at [4]:
“questions of case management, questions of cost, delay and the use of the parties’ and the court’s resources must come first and foremost in the consideration whether any particular issue should be dealt with as a preliminary issue.”

Parties’ submissions

[22]D1 accepts that whether the conduct complained of constitutes a criminal offence is a mixed question of fact and law. However, its counsel submitted that the Issue is distinct from that question; and is a discrete point of law which can be determined speedily, and without any disputed evidence or disclosure, on submissions.[23]D1’s counsel referred me to a number of authorities in support of the proposition that the jurisdiction to make a declaration concerning criminal liability should only be exercised in exceptional circumstances. She identified a number of factors as relevant to whether a case is properly an exceptional case justifying this form of relief. These include:(1) Whether the declaration relates to existing or future conduct;(2) Whether the declaration sought is as to criminal liability or non-liability;(3) Whether the claim for a declaration is brought by a prosecutorial authority having responsibility for enforcing the criminal law;(4) Whether the declaration sought is fact sensitive or relates to a pure issue of law;(5) Whether there is a cogent public or individual interest in the claim to the declaration sought.(6) Whether alternative remedies are available to the claimant.[24]She submitted that the factors identified above represent a set of well-established legal principles as to how the discretion to grant a criminal declaration should be exercised. The trial of the Issue could, she submitted, proceed on the following assumptions:(1) D1 is in breach of the RWL; and(2) that breach is a criminal offence pursuant to s.70 of the Act. The court would not therefore need to consider the construction of the RWL or the Act.[25]She also put forward two alternative bases for dealing with the issue between the parties as to whether the criminal offence requires mens rea - D1 contending that it is necessary to show the requisite mens rea, on the part of the relevant “guiding mind” of D1, to establish the offence. The first basis was that the court would assume that the offence was one of strict liability/that the mens rea element was established. The second basis was that the court would assume that the other elements of the offence were established; but would determine the issue as to whether s.70 required mens rea. This, she submitted, would be relevant to the factor of whether the declaration sought was fact sensitive or a pure issue of law.[26]As to factual matters, she initially submitted that since the Issue was a discrete point of law, it could be determined on very limited and undisputed evidence, namely the RWL, the PLA’s letter dated 8 December 2016 and sample mooring licences. On this basis, she suggested a time estimate of 2 days for the trial of the Issue.[27]The claimants’ counsel submitted that the application was misconceived, and that the Issue was inherently unsuitable to be tried as a preliminary issue. He submitted that the discretionary power to refuse to grant a declaration could only properly be exercised in all the circumstances of the case. The point proposed to be determined was not therefore a point of law, but a point as to how judicial discretion would be exercised.[28]Developing these submissions, he said that where, as here, it was proposed that the Issue should be determined on the basis of the parties’ agreed assumptions as to factual matters, this fell short of all circumstances of the case which a valid decision as to exercising discretion required the judge to take into account. It was not, he said, possible meaningfully to ask the judge whether the court ought not to exercise its discretion on the basis of agreed facts. He also relied upon the fact that the parties had not been able to agree case summaries for this hearing, as indicating that they would be unlikely to agree facts for the trial of the Issue.[29]In response to these submissions, D1’s position shifted. By the end of the hearing, its counsel accepted that the trial of the Issue could, and submitted that it should, proceed on the basis that all factual matters alleged by the claimants were true.[30]This would not, she said, require the court to look at all the evidence in the claim. It would be for the claimants to put forward the facts they said made the case exceptional, and justified the court exercising its jurisdiction to grant the Criminal Declaration. D1’s position that there are no exceptional circumstances which justify the exercise of the discretion to grant the Criminal Declaration was set out in the annex to D1’s application notice; and the claimants, she said, have had ample opportunity to identify those factual matters which render the circumstances relevantly exceptional.[31]I agree that the Issue is not strictly a point of law, in that the proper exercise of the discretion requires consideration of all the circumstances including relevant factual matters. However, in my judgment, it is relevantly similar to a point of law in that, following D1’s acceptance that the court should proceed on the basis that all factual matters alleged by the claimants are true, no oral evidence would be required and there would be no cross examination. The court would therefore be confined to considering the application of the relevant legal principles to those facts. This would be a factor in favour of ordering the trial of the Issue, although it is not conclusive.[32]I turned therefore to consider the parties’ submissions on the factors set out in McLoughlin and Steele. Issue decisive or potentially decisive/dispositive of the case or at least one aspect of the case[33]The Issue is not dispositive of the claim as a whole: whichever way the Issue is decided, there will be a second trial. D1’s counsel submitted, however, that determination of the Issue in its favour would be decisive of those issues arising in respect of the Criminal Declaration, including determination of(1) the people whom the prohibition in s.70 encompasses;(2) the conduct to which the prohibition in the section applies;(3) the interpretation of s.70 (2);(4) whether the offence requires mens rea.[34]In response, the claimants’ counsel submitted that determination of the Issue would not in fact dispose of the question of whether D1 had committed a criminal offence, as this is the basis put forward by the claimants as giving rise to their standing to bring the claim. This is expressly acknowledged by D1 in the annex to its application notice, where it states that the Issue is potentially decisive of the claim as a whole; and that if the claim to the Criminal Declaration is dismissed, the claimants will have no basis for maintaining the claim to the Civil Declaration.[35]Thus, as the claimants’ counsel pointed out, the court’s refusal to grant the Criminal Declaration would not be determinative of the issue as to whether a criminal offence had occurred for the purposes of the claimants’ standing to seek the Civil Declaration. The court would, he said, still be required to determine that issue for that purpose. Determination of the Issue would not therefore result in a reduction in the issues to be decided by the Court, other than the narrow issue of whether the Criminal Declaration should be granted.[36]In response to this, D1’s counsel offered (in the course of the hearing) an undertaking not to challenge the claimants’ standing to seek the Civil Declaration if a trial of the Issue were ordered. This, she said, would mean that, if D1 succeeded on the Issue, the trial would only be in respect of the issues relating to the Civil Declaration, namely the construction of the RWL and whether the Court should exercise its discretion to grant that declaration.[37]I accept that if D1 gave an undertaking not to challenge the claimants’ standing at any stage of the claim, and it succeeded on the Issue, then the issues to be determined at trial would be confined to those arising in respect of the Civil Declaration. If, however, D1 failed on the Issue, then the trial judge (who might well be a different judge from the one who determined the Issue) would have to revisit the question of whether the court ought to grant the Criminal Declaration in the light of the facts as actually found by him/her at trial (even if those facts were largely or wholly undisputed). D1’s failure on the Issue might arguably result in the Issue being determined twice: firstly, on the facts assumed for its trial as a preliminary issue; and secondly, on the facts as found at trial.

Would trial of the Issue result in reduction in costs and time of trial

[38]The general position is that two trials in respect of the same issues are likely to involve significantly more time and costs than one. Here, if D1 failed on the Issue, then undoubtedly the overall costs of the claim would be significantly higher. If D1 succeeded on the Issue, then the relevant comparison is between:(1) a single trial in which the claimants’ entitlement to the Civil and Criminal Declarations is determined;(2) a trial of the Issue, followed by, if D1 succeeded, a trial limited to the claimants’ entitlement to the Civil Declaration. D1’s counsel submitted that a trial of the Issue could result in a significant reduction of the time and costs of the trial if it succeeded on the Issue; because it would remove the need for determination of the issues set out at paragraph 33 above, which would involve significant costs. In particular, she said, investigating the identity of the persons who were the ‘guiding mind’ of D1 at the various relevant times (going back to 1993) would be difficult and time-consuming, when the current owner of the shares in D1 bought them in 2016. Investigating the state of mind of those people (for the purposes of determining whether they had mens rea)would also she said be a difficult and expensive exercise.[39]I accept that determination of the Issue is capable of resulting in a reduction in costs, if coupled with the undertaking offered by D1. I am not satisfied, however, that the level of costs saved would be as significant as D1’s counsel suggested. The conduct which the claimants allege is a criminal offence is the granting of licences, which, in this case, was invariably done in writing; one would therefore expect the relevant documents to be reasonably readily available to D1, or available to the claimants. As for the persons at D1 carrying out the relevant acts, again, one would expect their identity to be apparent from the relevant documents. I accept there may be some difficulty in finding some of the relevant people, but I am not persuaded that doing so and proofing them as to their state of knowledge when granting the relevant licences would be as onerous and expensive a task as D1’s counsel suggested. Where the issue is one of law, how much effort involved in identifying relevant facts Where issue is one of law, extent to which it can be determined on agreed or assumed facts

Where the issue is one of law, how much effort involved in identifying relevant facts

[40]If the trial of the Issue is conducted on the basis proposed by D1’s counsel in the course of the hearing, no significant effort is likely to be involved in identifying the relevant facts, or in resolving disputed facts.[41]The claimants’ counsel submitted that it was wrong in principle to order trial of an issue on assumed facts. However, this course is expressly contemplated in McLoughlin. In addition, D1’s counsel referred me to §8.4.2 of the TCC Guide, which states that appropriate disputes for a preliminary issue hearing include those where “the defendant contends that, even accepting all the facts alleged by the claimant, the claim must fail…”. I do not therefore consider that the fact that the Issue would be decided on assumed facts is a reason for not ordering its preliminary trial. Where facts are not agreed, whether determination of a preliminary issue would cut down flexibility at trial or unreasonably fetter either or both parties, or the court in achieving a just result[42]The claimants’ counsel submitted that ordering a trial of the Issue would restrict his clients as to the relief they seek and the court’s flexibility in achieving a just result. He referred me to the decision of R v Director of Public Prosecutions, ex parte Camelot Group Plc (1977) 10 Admin L Rep 93, in which Simon Brown LJ said, at p104:
“1. The decision falls to be taken not as one of the high principle but rather in the light of a number of relevant considerations. 2. The court should adopt an essentially flexible approach to the exercise of its declaratory jurisdiction in this field. The only rigid rule is, following Imperial Tobacco, that once criminal proceedings have begun, the civil courts should not intervene.”
[43]He also referred me to R (Haynes) v Stafford Borough Council [2007] 1WLR 1365, in which the claimant (who was concerned about the welfare of birds) sought declarations, including that a bird fair involved the commission of criminal offences on the proper construction of the word ‘market’ in the relevant statute. The judge declined to make the declaration sought; but did give declaratory relief setting out his conclusions as to the meaning of “market”, without declaring that any particular person had committed a criminal offence. The claimants’ counsel also submitted that it was entirely possible that the court, having determined the issues concerning the construction of the RWL and s.70 of the Act, might decide not to grant the Criminal or Civil Declarations on the grounds that, the law having been clarified in the narrative judgment, it was not necessary to order any such declaration. Such an outcome would, however, provide the claimants with the relief they seek.[44]The claimants’ counsel submitted that the trial of the Issue would prevent such a flexible approach from being adopted by the court, or his clients adapting their case in the course of the trial. As to the former, this is in my judgment met by D1’s proposal that the Issue would be determined on the basis that all the facts alleged by the claimants were true; facts before the court will be settled at the commencement of the trial, and there will be no need for the court to respond to developments in the factual position as the trial progresses. As to the latter, in my judgment it is incumbent on the claimants to set out, in their Details of Claim, the full range of the relief they seek. To the extent that relief sought might vary according to the facts found by the judge, then the proper occasion on which possible alternatives should be put to the judge to reflect that variation is in the pleaded case, not least to enable the defendants to respond to it. So, I do not accept that determination of the Issue would deprive the claimants of flexibility - because they ought in any event to set out the range of relief sought by them in their Details of Claim; but it does give rise to the risk of their amending, considered in paragraph 52 below.

Risks of increasing costs and/or delaying trial, including possibility of appeal

[45]As to the risk of increasing costs, in my judgment this is a real risk, arising from D1’s failure on the Issue, and the consequent duplication of time and effort resulting from there being two trials rather than one.[46]As to delay, the current position (as communicated to D1’s representatives by Judges Listing), is that a 2 day trial could be listed in June or July 2018. The published trial windows as at the date of the hearing were:(1) For a trial of one day or less: 1 October 2018 - 31 December 2018;(2) For a trial of 2 - 5 days: 1 January 2019 - 31 March 2019.[47]It is not in my judgment realistic to proceed on the basis that the trial of the Issue could be disposed of in 2 days, including judicial pre-reading time. This application was listed for 2 days, including ½ day judicial pre-reading; although submissions were in the event heard in a single day. In my judgment, 3 days is a realistic estimate. The trial of the Issue would therefore not be heard until early 2019, the same period when the trial of the claim would be heard. This is in my judgment a very significant factor. I also have in mind the highly acrimonious nature of this dispute, giving rise to allegations and cross allegations of iniquitous ulterior motives on both sides - which I am not in a position to resolve on this application, and which are marginally relevant. Whatever the outcome of the determination of the Issue, an appeal seems likely; and this would give rise to more delay.

Whether the determination of the Issue may be irrelevant

[48]Although the Issue may ultimately be irrelevant - if, for instance, the claimants are unable to establish that D1’s conduct is in breach of the RWL - I accept D1’s counsel’s submission that this does not of itself detract from the value of it being determined at preliminary stage, because both sides will need to prepare for it to be determined at the trial if it is not determined before.[49]However, the claimants’ counsel submitted that if, as D1 proposes, the trial of the Issue proceeded on the assumption that the claimants were correct in their interpretation of the RWL (and had obtained a declaration to that effect) and were also correct in their understanding of the effect of s.70 of the Act, it was, he said, inconceivable that a Court might conclude that it would never make the Criminal Declaration. If so, then, he said, the preliminary issue would simply be an expensive waste of time and money.[50]By contrast, D1’s counsel submitted that the merits of its position that the exceptional circumstances necessary for the court to exercise its jurisdiction were wholly lacking were so strong that I should proceed on the basis that they were very likely to succeed on the trial of the Issue.[51]I did not hear full arguments on the merits, and it is not obvious that either side is bound to succeed on the Issue. Nonetheless, I consider that there is serious risk that the court would not decide the Issue in D1’s favour, or indeed might decline to decide the Issue at all, and adjourn it to the trial judge. Risk that determination of the Issue could lead to an application to amend to avoid the consequences of the determination[52]I have already adverted to the possibility of the claimants seeking more limited declarations than that currently sought. In this context, the risk of the Claimants amending the relief sought by them if the Issue were determined against them seems to me to be a further significant risk.

Whether it is just that there should be a trial of a preliminary issue

[53]D1’s counsel submitted that it was just and proportionate to order a separate trial of the Issue. She said it was unjust that D1 should have the Criminal Declaration hanging over it. This was, she said, an extremely serious matter where the civil courts were not the normal forum; and the claimants could bring a private prosecution in respect of the alleged offence. This, she said, justified an early determination of whether the court was in principle prepared to entertain the claim.[54]As to this, the claimants’ counsel pointed out that the criminal offence created by s.70 of the Act is a summary only offence. It is therefore too late for D1 to be prosecuted for any past breaches, because an information must be laid within 6 months – see s. 127 Magistrates Court Act 1980. He also submitted that it was not in either side’s interests to wait for, or to deliberately create, a potential breach by D1, and then for the claimants to pursue a private prosecution. There was, therefore, he submitted, no obvious alternative to the claim, by which the claimants seek clarity from the court as to whether D1’s proposed course of action – to charge the claimants a premium – is lawful or illegal.[55]It is also relevant in this context that establishing the criminal offence is (absent D1’s proposed undertaking) an essential element of the claim for the Civil Declaration.[56]I accept that D1 has a legitimate interest in having the question of whether it has committed a criminal offence determined within a reasonable timescale; but not on an expedited basis. The appropriate timescale for the Issue to be determined also has to be evaluated in the context of the progress of the claim, and D1’s application, which was issued on 31 July 2017 and the hearing of which was adjourned by agreement of the parties.[57]D1’s counsel also relied on the fact that the summary judgment application remains to be heard. She submitted therefore that the trial of the Issue could conveniently and proportionately be listed at the same time as that application; and submitted that the evidence and the substantive issues would be the same. The advantage of a trial of the Issue would, she said, be that it would enable the court to explore the matter more fully, and thereby reduce the prospect of appeal. No or no significant extra time would be involved and there would be no extra delay.[58]In any event, D1 seeks directions for the listing of the summary judgment application and the strike out application. The claimants’ counsel submitted that I should list both applications to be heard at trial.[59]I accept that the substantive issues would be the same on an application for summary judgment in respect of the Issue and a trial of the Issue. However, D1’s counsel’s superficially attractive argument is, in my judgment, flawed. If the summary judgment application succeeds, then a Trial of the Issue will be unnecessary. If the summary judgment application fails, then this will be because the court considers that the Issue is unsuitable for summary determination and ought to be tried (at a hearing that will be significantly longer than the hearing of the summary judgment application). I have already concluded that there is no proper basis for expediting the trial of the Issue. The fact that the summary judgment application is to be heard does not therefore provide a proper basis for D1 to obtain an expedited trial to which it would not otherwise be entitled.[60]I do not however consider that I should accede to the claimants’ counsel’s submission that the two outstanding applications should be adjourned to the trial judge, particularly where, as here, the trial has not yet even been listed. The general position is that a party who makes an application is entitled to have it determined within a reasonable period; and the claimants’ counsel did not put forward any reasons why that should not be the case here.

Conclusion

[61]Taking into account all of the above factors, I consider that the factors which I have identified as militating against the trial of a preliminary issue weigh more strongly than those favouring it: particularly, the risks of delay (when the entire claim can be tried in early 2019) and of a significant increase in costs resulting from splitting the trial. For these reasons, I am not willing to order a preliminary trial of the Issue.[62]If the parties are unable to agree the order consequent upon my judgment, including directions for the listing of the summary judgment application and the strike out application, I will hear them at a hearing listed for that purpose.