Rothbart v Bridge Leisure Management Ltd

When deciding whether to split a trial, the court assesses the likely effect on overall efficiency and cost by reference to the material available at the time of the decision. A possible increase in total cost may be outweighed by substantial savings if a preliminary trial disposes of the claim or promotes settlement. Splitting is particularly appropriate where the issues are clearly separable, findings at the first trial will provide reliable foundations for assessing remedies, and expert evidence on loss would otherwise be disproportionately expensive. Mediation should generally be encouraged before substantial further costs are incurred. Relevant electronic messaging systems should be included in reasonable disclosure searches where they may contain business communications, even if they are also used for personal messaging.

The claimants sought case-management directions for a split trial. Issues 1 to 4 concerned liability and related factual matters, while issue 5 concerned loss and remedies, including loss-of-opportunity and loss-of-profit calculations. The court also considered the timing of mediation, a proposed third-party disclosure application concerning the Colliers file, and searches of WhatsApp messages used by relevant custodians.

The central questions were whether the issues should be tried separately, when mediation should be encouraged, whether early production of the Colliers file was justified, and whether WhatsApp should be included in reasonable disclosure searches.

1. Split trial. The court ordered a first trial of issues 1 to 4 and a subsequent trial of loss and remedies, if required. The decision had to be made on the material available at the time, notwithstanding the possibility that hindsight might show the order to have increased overall costs.
2. The issues were sufficiently clear and had little overlap. If the claimants succeeded at the first trial, the necessary findings concerning their ability to purchase the Park would provide fixed and useful foundations for the remedies assessment. If they failed, the second trial and its associated costs would be avoided. There was also a significant prospect of settlement after the first trial. These benefits outweighed the modest risk of additional cost, particularly given the very high anticipated expert costs concerning hypothetical remedies.
3. Mediation. The court directed the parties to exchange lists of available individuals and endeavour in good faith to agree mediation arrangements. In principle, mediation should occur sooner rather than later, before substantial further disclosure and other costs became an impediment. The parties were expected to be constructive and co-operative about information reasonably needed to make mediation effective.
4. Disclosure. No sufficient case had been shown for requiring early production of the Colliers file within the contested litigation. Any request could instead be addressed in the mediation process or through ordinary disclosure and inspection. By contrast, WhatsApp used by relevant custodians should in principle be searched to an equivalent extent to email. The court left the precise search terms and protocols to be determined through reasonable disclosure processes.

First-instance case-management decision. No prior or appellate decision is stated in the judgment.