EasyGroup Limited v ER Travel Service Limited & Ors.

The stage at which joint-tortfeasor liability issues are tried is a discretionary case-management decision governed by the overriding objective. Although such issues are commonly tried with primary liability, that practice is not determinative. The court should assess the likely effect on settlement, costs, delay, factual and documentary complexity, witness evidence and trial length. Where primary liability is likely to be determined at trial and the additional work is limited, deciding joint liability at the liability stage may promote settlement and avoid duplicated costs. A possible saving if the claimant fails on primary liability is not, without more, sufficient to defer the issues.

EasyGroup Limited brought trade mark infringement and passing-off proceedings against companies and individuals connected with the Easirent business. Some defendants were alleged to be jointly liable for infringing acts or threatened acts pursuant to a common design.

At a case management conference, the court had to decide whether the joint liability issues should be tried with liability or postponed until any quantum hearing. The defendants argued that deferral could save costs if the claimant failed on primary liability. The court determined that case-management question.

1. Applicable approach. The decision whether to try an issue as part of liability or quantum is a discretionary case-management decision. The discretion must be exercised in accordance with the overriding objective, having regard principally to cost, delay and the use of the parties’ and the court’s resources. The guidance in Lexi Holdings Plc v Pannone & Partners [2009] EWHC 3507 (Ch) was applied.
2. The fact that joint liability issues are commonly tried at the liability stage reflects usual case-management considerations, but does not itself determine the order. The court must assess the circumstances of the particular case.
3. Relevant considerations included that few intellectual property cases proceed to a quantum trial; determining joint liability with primary liability could improve settlement prospects; any costs saving from postponement would arise only if primary liability failed; and the additional costs of trying the issues at liability were limited.
4. The joint liability issues were fact-sensitive but did not require extensive factual inquiry. The pleaded case depended largely on inferences from undisputed facts, the terms of the Leasys agreement and the roles of relevant directors and shareholders. Agreed Model B disclosure was unlikely to generate substantial cost. The principal defence witness would give evidence on both primary and joint liability, so a single witness statement and cross-examination would save time and expense.
5. The court concluded that the settlement benefit of determining the issues at the liability trial outweighed the additional costs, which might in any event be incurred at a later quantum hearing. The direction sought by the defendants was refused, and the joint liability issues were to be tried at the liability stage.