Tatiana Soroka v Payne Hicks Beach (A Firm) [2025] EWHC 602 (Ch)

[2025] EWHC 602 (Ch)Case No BL-2023-001127IN THE HIGH COURT OF JUSTICEBUSINESS AND PROPERTY COURTS OF ENGLAND AND WALESBUSINESS LISTVenue Royal Courts of Justice, Rolls Building, Fetter Lane, London, EC4A 1NLDate 18/03/2025
Before
MASTER KAYE
Between
TATIANA SOROKAClaimantPAYNE HICKS BEACH (A FIRM)Defendant
Graeme McPherson KC and Marie-Claire O’Kane (instructed by PCB Byrne LLP) for ClaimantPatrick Lawrence KC and Lucy Colter (instructed by Clyde & Co LLP) for DefendantHearing Hearing dates: 27 February 2025
Approved JudgmentThis judgment was handed down remotely at 10.00am on 18 March 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................MASTER KAYE

Master Kaye:

[1]This claim was issued on 21 August 2023. The particulars of claim are dated 15 December 2023 (“POC”). The defence is dated 20 March 2024. The Defendant’s first Request for Further Information (“RFI”) was dated 21 March 2024. The Claimant response to the RFI (the “RRFI”) is dated 8 July 2024. The Defendant’s second RFI (“SRFI”) was dated 13 September 2024.[2]This claim was originally listed for its first case management conference (“CMC”) on 18 October 2024. However, on 30 September 2024 the Claimant had issued an application for a split trial (“the Claimant’s application”). The CMC was relisted on 27 February 2025. The combined time estimate for the CMC and the Claimant’s application was 1 day. Given its significance to the future directions, the conduct of the claim and the CMC, from a case management perspective the Claimant’s application had to be determined first. In the event the submissions in relation to the Claimant’s application took up most of the day.[3]At the conclusion of the hearing, I indicated that I would not order a split trial and that I would provide brief reasons separately. This judgment sets out those reasons.[4]I had and have taken into account the written and oral submissions of counsel and had considered the evidence advanced by the parties even if I do not set out or address each and every argument advanced.[5]The CMC has been relisted. The full trial is to be listed in a window commencing in October 2026. The Claimant has been ordered to respond to the SRFI by 28 March 2025.[6]This is a professional negligence claim. In overly simple terms it is said by the Claimant that if she had been given the advice that she says she asked for and she should have been given in January 2017, she would have achieved an earlier and/or better settlement with her ex-husband and/or she would not have incurred the same level of costs that she did by the time she reached the settlement she in fact reached in 2021 (“the Settlement”).[7]The claim is therefore about the loss of the chance to have achieved a different/better outcome to the one she achieved by the Settlement.[8]I have expressed my concern that having relied on and referred to the Settlement and Funding Agreement, as defined, in the POC the Claimant has yet to resolve any issues of confidentiality with third parties to enable her to disclose them in this claim. It seems to me that the Claimant ought to have addressed those issues in advance of issuing her claim given their centrality to, in particular, causation and loss.[9]However, the Defendant (“PHB”) denies that the Claimant even sought the advice she says she should have been given and therefore denies breach, duty, causation and loss. Mr McPherson says that the Claimant had anticipated that breach and duty would be admitted. The rationale for the Claimant’s application is to seek to achieve a determination in respect of breach and duty first before questions of causation and loss have to be considered.[10]Causation and loss will require the Claimant to set out what she says would have happened if she received the advice she says she should have been given. This is likely to involve a number of different hypothetical scenarios/counterfactuals which will build on each other.[11]Mr McPherson sought to persuade me that there was a clear bright line between the breach and duty issues and the causation and loss issues. If breach and duty were determined in the Claimant’s favour the Claimant would then seek to resolve the claim by ADR at an early stage. If the Claimant were unsuccessful on breach and duty that would be dispositive of the claim.[12]Superficially therefore, there was an attraction to hiving off breach and duty if there was a clear bright line and the claim could be parcelled up into two trials, trial one on breach and duty and trial two on causation and loss.

The Law

[13]Whether to order a split trial is quintessentially a case management decision. The power derives from CPR 3.1(2) and in particular CPR 3.1(2) (j) and (k). The Chancery Guide explains at paragraphs 6.10 to 6.11 that costs can sometimes be saved if there is a decisive issue(s) that can be determined first. It encourages parties to consider those options in advance of the CMC.[14]It is an exercise of the court’s broad discretion consistent with the overriding objective to deal with cases justly, fairly as between the parties but also efficiently and proportionately including having regard to costs and the use of court resources.[15]Many of the authorities treat the factors and considerations about whether to direct a split trial or preliminary issues as largely interchangeable (see Jinxin Inc v Aser Media Pte Limited [2022] EWHC 2431 (Comm) at [20] (“Jinxin”)).[16]In Steele v Steele [2001] C.P Rep 106 Neuberger J (as he then was) identified a series of questions or considerations now often treated as a checklist when considering whether to order either preliminary issues or split trials.[17]In Electrical Waste Recycling Group Limited v Philips Electronics UK Ltd [2012] EWHC 38 (Ch) (“Electrical Waste”) at [5] and [6] Hildyard J identified a number of factors to consider in “what is essentially a pragmatic balancing exercise” when determining whether to order a split trial.[18]In Jinxin Peter McDonald Eggers sitting as Deputy High Court Judge considered both the benefits and disadvantages of split trials and reviewed the authorities including Steele v Steele, Electrical Waste, McLoughlin v Jones [2001] EWCA Civ 1743 (in which David Steele J cautioned against preliminary issues that were not practicable) continuing at [23] to [26]:
“23. The fact remains that the decision to split what would otherwise be a single trial into more than one trial each dealing with defined issues is a step out of the norm, where in most cases there will be a single trial determining all of the issues arising in an action. Accordingly, there must be a real and substantial advantage if a split trial were ordered to take place. In Bindel v PinkNews Media Group Ltd [2021] EWHC 1868 (QB); [2021] 1 WLR 5497, Nicklin, J said at para. 33: "a case in which the court directs determination of a preliminary issue that will require resolution of disputed issues of fact, including disclosure, witness statements and cross-examination, must be regarded as an exception to the general rule, and one that requires careful consideration by the court and very clear justification." 24.It is also salutary to recall the warning of Lord Neuberger, MR in Rosetti Marketing Ltd v Diamond Sofa Company Ltd [2012] EWCA Civ 1021; [2013] 1 All ER (Comm) 308, at para. 1 in connection with the proposal for trials of preliminary issues: "… It represents yet another cautionary tale about the dangers of preliminary issues. In particular, it demonstrates that (i) while often attractive prospectively, the siren song of agreeing or ordering preliminary issues should normally be resisted, (ii) if there are none the less to be preliminary issues, it is vital that the issues themselves, and the agreed facts or assumptions on which they are based, are simply, clearly and precisely formulated, and (iii) once formulated, the issues should be answered in a clear and precise way." 25.Although the present application was not for a trial of preliminary issues, at least nominally, the Master of the Rolls' warning remains relevant where a party applies for specific issues to be determined separately from the majority of issues arising in the action, based on limited evidence and specified assumptions to be made. 26.Unless a split trial can be justified as a means of resolving the disputed issues in action in accordance with the overriding objective with clear benefits over and above those of a single trial, the peril exists that a split trial will add considerably to the parties' costs burden, will delay the conclusion of the action (with an unappealing drain on the Court's resources) and/or will lead to unanticipated difficulties.”
[19]There are dangers and unintended consequences, where an apparently bright line separating particular issues turns out not to be so bright or perhaps a little bit fuzzy. This is likely to be particularly acute when considering a split trial. There is an inherent risk of satellite disputes which would undermine the intended benefits of a split trial. If the split turns out to be in the wrong place or not clean there is the risk that the trial one judge cannot determine properly or at all those issues which the parties had intended to have determined at trial one. If there is a grey area or some fuzziness there may be missing evidence and disclosure at trial one or overlap, creep or seepage between the evidence and the issues to be determined at the two trials and/or worse that some issues might end up falling down a gap between the two.[20]The starting point and often the end point is therefore whether there is a sufficiently clear bright line between the issues to be determined at each stage such that in principle a split trial is possible.[21]If the court is satisfied that in principle a split trial is possible then it must consider all the circumstances of the particular case. Neither Steele v Steele nor Electrical Waste were intended to provide a comprehensive or exhaustive list of factors. The judge should stand back and take a common-sense pragmatic approach. Is it in the interests of justice having considered all the circumstances in a particular case, which will be unique to it, and consistent with the overriding objective and good case management to direct a split trial? Where is the bright line? The claim

Where is the bright line?

[22]Nothing in this brief summary or these reasons is intended to detract from the detail of the statements of case.[23]The Claimant obtained a financial remedy order against her ex-husband Mr Akhmedov in December 2016 which amongst other matters ordered Mr Akhmedov to pay her £350m (“the FRO”). PHB represented the Claimant in the divorce and ancillary relief proceedings culminating in the FRO.[24]Mr Akhmedov did not willingly comply with the FRO. The Claimant was forced to take steps in various jurisdictions to enforce the FRO. In both the FRO and subsequent orders various companies were determined to be nominees for Mr Akhmedov and to hold assets that were beneficially owned by him. He (or the companies) had either been directed to transfer the assets to the Claimant, or they were available for her to enforce against. The Claimant obtained litigation funding to assist her in pursuing Mr Akhmedov's assets and enforcing the FRO.[25]Eventually, in July 2021 the Claimant entered into the Settlement with Mr Akhmedov in relation to his obligations under the FRO.[26]A superyacht, the Luna, said to be worth in the region of US$200,000,000 was said to be an asset of Mr Akhmedov. For present purposes, the details of its ownership on any particular date are not relevant but it was not held in his name.[27]The Luna was docked in Miami from about January 2017 to about May 2017.[28]The Claimant alleges that PHB were negligent in failing to advise her that she could and should take steps to enforce the FRO against the Luna whilst it was docked in Miami.[29]She pleads that she spoke to PHB by telephone on 24 January 2017. She says that during that call she told PHB that the Luna and Mr Akhmedov were in Miami and that she wanted to explore options in Miami. She says she asked PHB to reconsider whether she might be able to enforce the FRO against the Luna in Miami.[30]PHB say that the Claimant gave express instructions on 3 January 2017 that she was not interested in impounding the Luna and that those instructions did not change. PHB say that they were not instructed to obtain advice about the possibility of arresting the Luna in Miami but only about the possibility of arresting Mr Akhmedov. They sought initial advice from a Miami attorney. They were told that arresting Mr Akhmedov was not an option, but they could seek to enforce the FRO in Florida if Mr Akhmedov had assets there. PHB subsequently confirmed to the Miami attorney that Mr Akhmedov did not have any assets in the US.[31]The Claimant does not recall exactly what she was told after 24 January 2017 only that she had the clear impression that enforcing the FRO in Florida whilst the Luna was there was not an option open to her.[32]POC [36] sets out the claim on breach and duty. Mr McPherson submits that it would be possible to determine these issues separately to causation and loss: PHB’s breaches of retainer and breaches of duty 36. PHB acted in breach of the contractual and common law duties of care that it owed to [the Claimant]. PARTICULARS(a) PHB wrongly and negligently informed Mr Marks that [Mr Akhmedov] had no assets in the USA when in fact (as PHB knew): (i) the Luna was (on [the Claimant]’s case and as the Judge found to be the case) beneficially owned by [Mr Akhmedov]; and (ii) the Luna was docked in Miami, Florida.(b) PHB ought to have informed Mr Marks that: (i) the Luna was docked in Miami; (ii) although the Luna was in the name of one of [Mr Akhmedov]’s Nominees, [Mr Akhmedov] was (on [the Claimant]’s case) the legal and beneficial owner of the Luna; and (iii) [Mr Akhmedov] therefore did have a (very valuable) asset in the USA, but, wrongly and negligently, PHB did not provide such information to Mr Marks.(c) PHB negligently failed to seek or obtain any advice from Mr Marks or any other competent Florida attorney as to: (i) Whether [the Claimant] might be able to enforce the [FRO] against the Luna while it was docked in Miami. (ii) The steps that [the Claimant] would have to take in order to enforce the [FRO] against the Luna while it was docked in Miami.(d) PHB negligently led [the Claimant] to understand that enforcing the [FRO] in Florida while the Luna was in Miami was not option that was open to her. As above: (i) PHB advised [the Claimant] that taking steps to enforce the [FRO] in Florida while the Luna was docked in Miami was not an option that was open to her; alternatively (ii) PHB failed to advise [the Claimant] that taking steps to enforce the [FRO] in Florida while the Luna was in Miami: (1) was an option that was open to her; alternatively (2) might be an option open to her.(e) PHB ought to have advised [the Claimant] not only that taking steps to enforce the [FRO] in Florida while the Luna was in Miami: (i) was an option that was open to her; alternatively (ii) might be an option open to her, but that that option was a favourable one for her, that she should positively pursue that option and that she should take steps to enforce the [FRO] in Florida while the Luna was in Miami. (my emphasis) PHB’s breaches of retainer and breaches of duty PARTICULARS

PHB’s breaches of retainer and breaches of duty

[33]PHB’s defence to the allegations of breach of duty is at Defence [41]: 41. It is denied that the Defendant was in breach of duty whether as alleged in paragraph 36 or at all. Without derogating from the generality of that denial, the Defendant pleads as follows:a. The statement that [Mr Akhmedov] personally did not own assets in Florida was true, but in any event that is nothing to the point. The question raised by these proceedings is whether the sending of Mr Manners' email ("Sadly the parties in question do not have any assets in [the] USA") was a breach of any duty owed to the Claimant. It was not.b. Sub-paragraph (b) is denied. There was no obligation to provide Mr Marks with the said information and good reason not to. Given that the Defendant had not been instructed to obtain advice on the enforcement of the [FRO] against the Luna in Florida, it would have been a breach of the duty of confidentiality to provide Mr Marks with information about the Luna.c. Sub-paragraph (c) is denied: the entire case is founded on the false premise that the Claimant instructed the Defendant to obtain the said advice.d. Sub-paragraph (d) is denied: the Defendant did not lead the Claimant to form the alleged understanding, and she did not have that understanding.e. Sub-paragraph (e) is in all the foregoing premises denied.”[34]The dispute about whether there is a clear bright line centres primarily on whether the facts and matters that would need to be considered to determine POC [36(d)] and [36(e)] can be sufficiently separated from the causation issues.[35]The next section of the POC [37] to [41] addresses issues of causation. Those paragraphs set out the favourable advice the Claimant says she would have received and then the sequence of steps which the Claimant would have taken over a period of time, based on that advice, to enforce against the Luna. PHB say that any advice would have been pessimistic but deny that the Claimant would have taken those steps even if given favourable advice about the prospects of enforcement.[36]Whilst Mr McPherson submits that POC [36] can be separated from these issues of causation without adversely affecting the evidence and decision-making process in respect of causation and loss, PHB argue that they are closely connected and overlap.[37]Whilst there seemed to be some measure of agreement that it might be possible to separate out POC 36 (a) to (c) there was a significant divergence of views about whether that would be possible in relation to POC 36(d) and (e).[38]Mr McPherson argued that (d) and (e) only required the Claimant to satisfy the court that as a matter of Florida law there was or might have been the option of enforcing against the Luna in Miami and that PHB failed to but ought to have advised it was an option.[39]Mr Lawrence submitted that both the use of “might be” an option and the plea in (e) that “that option was a favourable one for her, that she should positively pursue that option and that she should take steps to enforce the [FRO] in Florida while the Luna was in Miami” could not be limited to breach and duty but were integral to the causation issues. He argued that if the court had to determine whether the option of enforcing against the Luna was favourable and whether the Claimant should have been positively advised to pursue it the overlap with causation and the much wider and more complex issues of Florida law, which the parties agreed would arise at that stage, would also be engaged. There would therefore be at least a significant overlap in respect of the expert Florida law issues to be considered on breach, duty and causation.[40]Mr McPherson argued that PHB were misreading POC [36(e)] interposing causation part way through the [36(e)] determination of issues of breach and duty. He argued that [36(e)] simply required the court to determine whether enforcement against the Luna was or might have been an option in January 2017.[41]On Mr McPherson’s analysis there would be no or very limited requirement for Florida law experts at trial one. The only Florida law evidence needed would be whether, if PHB had acted non-negligently, the advice would have been that enforcement against the Luna was or might be an option.The decision on breach and duty could be made without considering the nature of the advice so it did not matter that PHB argued that any advice would have been pessimistic. This appeared to me to seek to ignore the additional words in [36(e)] leaving them over to causation.[42]If one did not ignore the additional words in [36(e)] there seemed to me to be a real risk of fuzziness or greyness around the edges of what was to be determined at trial one. It seemed to me that would lead to the risk of the types of unintended consequences, satellite disputes and difficulties which the authorities warn against.[43]If Mr McPherson were right and one could construct a split trial which left over the final part of [36(e)] to causation, then one might be able to undertake a narrow and limited exercise in relation to breach and duty. But this did not appear to me to be a useful exercise. To my mind it risked either leaving a gap or creating an overlap between breach, duty and causation across two trials.[44]It seemed to me that there was at minimum a risk of overlap between [36(e)] and causation and no obvious means of avoiding it. I am not satisfied that a narrow determination of whether enforcement against the Luna was or might have been an option on its own is useful and it does not appear to me to satisfactorily address breach and duty as pleaded in [36]. If it is necessary to consider the favourability of the advice that the Claimant says she ought to have received, then it seems to me that questions of whether the Florida law advice would have been favourable and whether enforcement ought to have been pursued affect both issues of breach and causation and should only be determined once with all the relevant material available.[45]Mr McPherson’s submissions were attractively made but I was left with a real nagging doubt that the clear bright line was not clear or bright. The risk of seepage or creep into the causation issues or fuzziness around the edges appeared to me to be real. It seemed to me that it would be difficult to prevent consideration of what might be considered favourable or what might have been the positive advice at trial one. It just did not seem to me upon reflection that the proposed split advanced by the Claimant was quite as risk free or attractive as it first appeared.But even if there were a way to carve out breach and duty in a slightly different way so that the line was clearer and brighter, I was not ultimately persuaded that a split trial was the appropriate course as a matter of case management.

Timing and delay

[46]There are a number of separate and connected issues relating to timing and delay which appeared to me to militate against a split trial when considering the balance between the parties and the interests of justice. i) This claim relates to instructions and advice said to have been given in telephone calls in 2017. The instructions that are central to the questions of breach and duty were oral and there do not appear to be contemporaneous notes. The Claimant already does not appear to have a clear recollection of those events and any further delay will only further affect her recollection. This is a stale claim relating to historic events. ii) The claim was only issued in August 2023 and then not served until the end of the lifetime of the claim form. It is now 18 months later, and no real progress has been made. iii) The Claimant’s application was issued six months after the defence was served. If, as Mr McPherson argued, he had expected PHB to admit breach and duty, and the Claimant’s application was intended to seek to achieve that outcome, then the Claimant had known that PHB did not intend to do so from at least March 2024. However, the Claimant’s application was not issued until 30 September 2024, less than three weeks before the original CMC causing yet further delay and resulting in the adjournment of the original CMC. iv) The Claimant’s application has taken up the entire time allocated to it and the CMC resulting in further delay to the progress of the claim. v) The full trial will now take place at earliest in a window from Autumn term of 2026 nearly 10-years after the events in question. vi) A split trial of 3 to 4 days could in theory be listed from Autumn 2025, but the reality of the current listings was that it would be unlikely to be listed before early 2026. And in any event, there would need to be a fair and realistic timetable for that split trial which would require disclosure, evidence and potentially expert evidence which could not sensibly be achieved earlier. This would not have been a claim which could possibly have justified any form of expedition given the delays in progressing the claim and the Claimant’s application to date. vii) If a split trial took place in say January 2026 and allowing time for judgment (ignoring any potential appeal) any CMC for the causation and loss trial would not be before April/May 2026. Given that the time estimate would still be 16 to 18 days (see below), any trial listing would be up to 18 months after that. This would result in the causation and loss trial taking place in perhaps early 2028.[47]It seems to me that if the entire trial can be accommodated in late 2026 that the advantages of a split trial in this case are significantly undermined. Unless the breach and duty trial were to be the catalyst for an early settlement then it would simply delay a final resolution until sometime in 2028 which to my mind is not in the interests of justice nor fair to either the Claimant or PHB and weighs against directing a split trial.[48]The estimate for the full trial of 20 days would not be substantially reduced if trial one took 3 to 4 days. It would not result in a straight reduction from the total. Although Mr McPherson argued that causation and loss would be more straightforward with fewer hypotheticals if breach and duty were determined it was not obvious that it would substantially reduce the options open to the Claimant. It seemed to me that it might reduce the total trial length by say 2 days. It would not therefore make much difference overall. This again militates against splitting the trial and delaying causation and loss by another 18 months.[49]Conversely, if trial one were to find against the Claimant, then absent an appeal the entire claim would come to an end. That would clearly be a factor to weigh in favour of a split trial, but it is an unusual one for a Claimant to rely on. ADR[50]The Claimant had indicated in her directions questionnaire that she wanted to attempt to settle. Mr McPherson was critical of the Defendant for not yet having engaged in some form of ADR and for not being more positive about the potential to do so in their directions questionnaire. PHB had indicated that they were not yet willing to engage in ADR but would keep it under review. The rejection at this stage may have been more robustly worded than Mr McPherson might have wished but it was far from a refusal to engage.[51]Mr McPherson submitted that a split trial would enhance the opportunity for an early settlement and encourage ADR. He considered that a determination in favour of the Claimant on breach and duty would enable the parties to progress settlement and ADR. I was not persuaded by this argument and indeed consider the opposite to be likely in this case.[52]It seemed to me that delaying engagement by the Claimant in relation to issues of causation and loss until after trial one would delay the point at which any meaningful discussions could take place. It was not immediately clear to me how any settlement or ADR could be progressed without some measure of clarity around causation and loss and disclosure of the Settlement and Funding Agreement. Delaying this until after trial one did not seem to me to be conducive to a settlement or ADR and if anything pointed in the other direction.[53]A decision that PHB were in breach of duty for not advising the Claimant that enforcement against the Luna might have been an option in January 2017 in theory might change the range of options the Claimant might seek to advance though that was far from obvious, but it would not clarify her overall position on causation or loss.[54]Given the clear and obvious issues raised in relation to causation, whether PHB are right or wrong, until the Claimant engages with them at least to some extent, it is difficult to see how any sensible and measured approach to settlement can be achieved. It was not clear to me how any meaningful settlement discussions could be progressed until the Claimant was able to explain how she said the outcome she achieved in the Settlement, that she has yet to disclose, differed or was worse than the outcome she said she would have achieved. It is not clear how the value of the Claimant’s claim can be assessed in the meantime. The lack of engagement by the Claimant on causation and loss and the proposed delay in doing so until after trial one appeared to me to be a bar to settlement.[55]Mr Lawrence referred me to Hildyard J’s comments in Electrical Waste about the factors that had a particular influence on Hildyard J’s thinking which included at [16] “my impression that mediation may be assisted by the parties having to bring more certainty to the money at stake”. It seems to me that similar issues arise in this case.[56]I do not consider that a split trial will enhance the prospects of an early settlement if no further progress is made in relation to the issues of causation and loss including the Settlement in the meantime.[57]The Claimant says that she is taking steps to seek to secure the consent of the third parties to the release of the Settlement and will make an application if she needs to, though that may be opposed. This is her claim. She cannot even begin to make out her claim for loss without producing the Settlement. The difficulties she appears to have experienced in obtaining release of the Settlement are not a reason to direct a split trial and nor are they conducive to an early settlement or a direction for ADR. It is not for the Defendant to take steps to secure disclosure of the Settlement.[58]A split trial is on the facts of this case highly unlikely to enhance the prospects of an early settlement. Rather, it seems to me that a split trial is more likely to delay the time at which the parties will be in a position to sensibly consider settlement.[59]Just because the court can order the parties to participate in ADR and will do so in an appropriate case, does not mean that it will do so when there is an obvious information gap that is more than merely illusory.[60]These are well represented parties with very experienced legal teams who I am confident will both be giving their clients appropriate advice about when and how to engage in settlement discussions. I would encourage the parties to keep it under review. If it becomes apparent that either or both parties may need a nudge to encourage them to do so and/or if I am asked by one or both of the parties to do so I may then either stay the proceedings or even direct them to participate in ADR at an appropriate point in the future.

Disclosure

[61]There was a disagreement between the parties about disclosure. It seems to me that this was simply caught up in the question of whether there was a bright line. If the line is not as clear and bright as suggested by Mr McPherson, then the disclosure will be more significant than the Claimant has assumed.[62]But the court always has to be cautious about a split in disclosure. That is why in some cases even if a split trial is ordered full disclosure takes place before trial one. There are additional costs associated with undertaking two exercises in search based disclosure over some or all of the same data set. I consider that there will or should be some overlap across the issues for disclosure and the documents produced on the breach and duty issues and those produced when looking at the causation issues or even the loss issues. It would be unfortunate if a document or element of disclosure that might have been relevant to trial one were only searched for or located by reference to a search undertaken for trial two. Whilst it may be considered that the issues for disclosure themselves could be separated, though that is not accepted by PHB, the splitting out of a data set is rarely so straightforward. Whilst the appropriate data sets for some aspects of the causation and loss in this claim may be more easily separable that will not be the same for all of the disclosure. I consider that there is overlap in this case between the breach and causation issues generally and that presents a risk in relation to disclosure not limited to costs that should be avoided.[63]Further the suggestion that the difficult issue of confidentiality in relation to the Settlement could be put off as it was not necessary for the proposed split trial was not a reason for a split trial. The Claimant needs to resolve that issue as soon as possible. It should already have been resolved.

Evidence

[64]However, it seemed to me that the issue of witness evidence presented a more acute issue that militated against a split trial. Already key witnesses have limited recollection of the events in 2017.[65]If there were a split trial it appeared to be accepted that the Claimant would have to give evidence at both trials and so would Baroness Shackleton and some of the other PHB lawyers. Those trials may be 18 months apart. Just because trial two will be dealing with the Claimant’s hypothetical case does not make it less important. Not all the evidence will be “hypothetical”. I cannot ignore the strain and inconvenience of two trials on the witnesses just because the Claimant hopes that there will be a settlement and no second trial. Nor is the fact that the Claimant is prepared to attend a second trial an answer.[66]The fact that all the witnesses will give evidence at both trials and that the evidence will essentially overlap given the need to look at the counterfactual or hypothetical case at trial two is significant. Not only is it unfair to the witnesses but it seems to me that there are other risks inherent in witnesses giving evidence covering the same ground twice.[67]Revisiting events and reconstructing what happened 10 years ago will affect the reliability of the evidence of all of the witnesses. That is even more important where already there is evidence that the witnesses do not have a strong recollection of those events. It is important that the court keeps that in mind.[68]I had some sympathy with Mr Lawrence’s submission that on the facts of this case a split trial would give the witnesses a trial run. He argued that it was not realistic for the court to make findings about the conversations that took place in January 2017 in isolation. On PHB’s case there would need to be consideration of contextual matters covering a period of 2016 to 2021 such as the Claimant’s attitude towards her ex-husband, her sons, her perceptions of the prospects of success, her attitude to risk and to spending money. And on PHB’s case all of those same issues would need to be revisited on causation and loss when considering any particular hypothetical. PHB say it would be unfair for them if those contextual matters could not be explored at trial one but also unfair to them if they were then revisited at trial two.[69]Whilst I am not convinced that the position is quite as stark as presented by Mr Lawrence, I do consider there would be overlap between the evidence the witnesses would have to give at trial one and trial two and it would be preferable in those circumstances for all the evidence to be dealt with at the same time. The time since the events took place and the further potential delay caused by two trials is a particular factor in this case given the nature of the evidence. The potential prejudice to PHB in those circumstances is a factor to take into account.[70]My concern is of course heightened when one considers the guidance in CPR PD 57AC and the best practice guide about how to approach witness evidence and the risks associated with revisiting the same evidence several times.[71]There was a fundamental difference between the parties on expert evidence. Mr McPherson argues that if there is any expert evidence needed at all on breach and duty it is very narrow indeed, limited to the question of whether in principle it would have been possible to enforce against the Luna in Florida. But it seemed to me that that was far too narrow a question. Stopping where Mr McPherson proposed did not seem to me to address the second part of 36(e) which then segues into the broader questions the experts had to consider. Even if there was a line that could be drawn in relation to the expert evidence it was accepted that the Florida law experts would have to give evidence twice with the bulk of their evidence having to address the causation issues. But it seemed to me to be artificial to have the Florida law experts provide reports that stopped having indicated what the position was in principle when they were to be asked to opine on the various options available and whether they were favourable or positive for the Claimant and her prospects of achieving the outcome she contended for.[72]The need for the same experts to attend trial twice was a factor that weighed against a split trial – certainly in this case. It must be preferable for them to give evidence once on all the issues if at all possible. Although there will be other experts for the full trial whose evidence goes to issues of quantum, the Florida law experts will be critical to the question of what could have been achieved in Florida, how long it would have taken and what it would have cost.[73]This was not a case in which one could say that the expert evidence in trial one and trial two would not overlap.[74]I note that the SRFI which addresses issues of causation and loss has yet to be responded to. The Claimant has not responded to it yet on the basis that if she were successful in her application for a split trial she would have intended to resist responding until after trial one. Whether one includes this under factors that go to timing and delay, ADR or evidence, it is unlikely to promote an early settlement.

Costs

[75]I was underwhelmed by the information provided about the likely costs of the two trials. It did not seem to me that the Claimant had really grappled with the cost benefits or disadvantages of two trials.[76]The Claimant considers that she will incur approximately £371,000 for trial one. I consider the figure to be light. It was clear from the evidence and counsel’s submissions that the figure was based on an overly narrow approach to what would be in issue on trial one. The Claimant had instructed two counsel for the Claimant’s application and their brief fees alone were £61,000, the grade A fee earner’s hourly rate is £600ph with the junior fee earner on £450ph. The total costs for the Claimant’s application were approximately £135,000. These are not insignificant figures but they significantly undermine the reliability of the £371,000 figure for a 3 day trial on breach and duty with disclosure, witnesses and the potential for some expert evidence.[77]The Claimant considers she will incur approximately £2m for the full 20-day trial. There is no breakdown for that figure but an explanation of the complexity of the causation and loss issues and the extensive disclosure and expert evidence needed. It seemed to me that when considering the rates and the work which the Claimant says has to be undertaken for the full trial that the trial estimate was unrealistic too. Curiously, given that the Claimant must be assuming she would be successful on trial one I was not given any figures for the potential costs of trial two.[78]PHB have not provided any indication of the likely costs of any of this. I do have their costs schedule for the Claimant’s application which is weighted differently from the Claimant and exceeds £200,000 but their two counsels’ combined brief fees are £46,000.[79]It does not assist me when I am considering the costs impact of a split trial if the figures provided are not realistic. Doing the best I can it seems to me that the costs of trial one would be higher than the Claimant indicated and so too would the full trial costs.[80]When considering the likely costs of trial two, the costs of trial one are not simply deducted from the overall costs. As with the trial length there will be additional time and consequently costs involved in trial two if it is separate to trial one. There will be two sets of trial preparation and brief fees and the overall length of the two trials is likely to be longer in this case. The costs of two trials will be more than the costs of one trial.[81]Of course, if the Claimant were to be unsuccessful at trial one the claim would come to an end and there would be a saving of the rest of the costs.[82]The costs benefit of a split trial seems to me to weigh against a split trial. There is no obvious substantial saving unless the Claimant loses trial one and a real risk of increased overall cost if she wins.[83]On the Claimant’s case there will be two trials unless there is an earlier settlement. However, for the reasons set out above this is not a claim where a resolution of breach and duty will lead to an obvious immediate window of opportunity to settle. The parties will have to do some work on causation and loss before any such settlement discussions can be progressed. That therefore further reduces the benefit in costs terms of a split.[84]It remains my view that this is a claim where progressing breach, duty, causation and loss together will provide the best opportunity of reaching a position where settlement discussions can take place. It also seems to me to represent the right balance in terms of costs and benefit. It seems to me the reasonable and proportionate approach consistent with the overriding objective.

Prejudice

[85]It seems to me that a factor in this case which weighs against the Claimant is the prejudice to PHB.[86]The Claimant has made choices about when and how she has decided to advance this claim. There is no prejudice to the Claimant in requiring her to proceed with her claim in a timely manner consistent with the overriding objective.[87]That she has so far done so without resolving issues around the Settlement and now seeks to delay further when she might resolve those issues is not a factor in her favour or in favour of a split trial. It deprives PHB of the ability to make choices including around settlement.[88]A split trial would potentially leave these proceedings hanging over PHB and the Claimant until 2028. The strain and inconvenience and impact on all the witnesses is a factor that militates against a split trial. But I also take into account that it will leave the claim hanging over the individuals within PHB for some years. It is not their choice to delay matters. They oppose the split.[89]There is also the question of prejudice to other court users. Two trials will take up limited court resources and affect when and how other court users are able to access those resources. It is not simply the need for two trials but all the associated case management and applications.[90]There will inevitably be an issue if there are two different judges determining the two trials with the second judge having to read in and seek to take the claim forward from the decision of the first judge particularly if it turns out that there is some fuzziness around the edges of the trial one decision as seems likely here.

Conclusion:

[91]As set out above I was far from persuaded that there is a clear clean and bright line between breach, duty, causation and loss in this case. But even if there were, the various factors I have identified all appeared to me to weigh against a split trial from a case management perspective.[92]The only real costs saving would be if there were a clean split and the Claimant were to fail on breach and duty. If, as the Claimant hopes, she is successful on breach and duty there would be no obvious costs saving at all. The assumption of an early settlement after a decision on breach and duty appeared to me to be misplaced without work and costs having been incurred in relation to causation and loss as set out above.[93]A split trial will cause delay to both the eventual determination of the claim and when it might be possible for the parties to engage in any sensible form of ADR. Inevitably that too will increase costs even if the full costs of a second trial are avoided. Progressing the full claim now including issues of causation and loss is more likely to lead to an earlier overall settlement.[94]I have real concerns about the need for the witnesses to give evidence twice, possibly 18 months apart. This is not just about the strain and inconvenience to the witnesses but about the fairness of the trial process and the reliability of that evidence. Whilst this is relied on by PHB it seems to me it affects both parties and the ability of the court to determine the claim fairly and justly.[95]The costs and inconvenience of the Florida law experts attending two trials is also a negative factor.[96]Although a single trial may have a level of complexity because the Claimant may advance options in relation to the hypotheticals, I was far from persuaded that those options would be significantly reduced by a determination on breach and duty. In order reduce to the options on causation and loss, any trial on breach and duty would have to go further than the narrow issues proposed by Mr McPherson. It would then creep into causation and so cease to have the clear or bright separation he argued for.[97]I have not addressed the risk of an appeal but given the nature of the case and its importance to both parties there would be a real risk that any trial on breach and duty would result in an appeal. Were it to do so that might delay trial two by a further year or more. Given the scope of the witness evidence and the historic nature of the underlying events the risk of further delay beyond even 2028 would be a further factor against a split trial. A single trial in late 2026 even if there were then an appeal would mean that all the witnesses would have given all of their evidence by then. That has to be preferable to having to revisit the events of 2017 in 2028 or 2029.[98]Standing back and looking at this in the round, taking a common sense and pragmatic approach, it seems to me the best course most consistent with the interests of justice and to enable the claim to be determined fairly and efficiently is to exercise my discretion to refuse the split trial even if I am wrong about the clear bright line. It is not consistent with the overriding objective or good case management to allow the Claimant’s application, and I refuse it.

Cited in 2 later judgments