Shane Farnham v East of England Ambulance Service

A preliminary issue should be ordered only where its determination is likely to dispose of the proceedings or materially advance them, having regard to the facts, costs, delay, possible amendments and the interests of justice. Even a pure question of law should not ordinarily be decided at an early stage where the factual and procedural context remains uncertain, the issue may prove irrelevant, or the claims would continue whatever the answer. The court must also consider the parties’ resources and the risk that an apparently efficient decision may become a costly and treacherous shortcut.

This was a preliminary case management hearing in coordinated claims by healthcare workers alleging that they contracted Covid-19 through their employment and that their employers breached duties relating to infection control and personal protective equipment.

The defendants sought an immediate preliminary determination of whether reliance on allegedly negligent national infection-control guidance amounted to an impermissible delegation of a non-delegable duty. The claimants opposed the application, contending that the issue would not resolve the claims and that the factual and procedural context remained undeveloped.

1. Application refused. The proposed issue was capable of being framed as a pure question of law, but it was not appropriate to determine it at that stage.
2. The decision to order a preliminary issue is a case management decision. The court applied the considerations summarised in Steele v Steele [2001] CP Rep 106, including whether the issue would dispose of the case or an aspect of it, reduce costs and preparation time, be safely determined on the available facts, fetter a just result, cause delay or increase costs, prove irrelevant, or prompt amendments to the pleadings.
3. The litigation was at an early stage. The factual circumstances surrounding the formulation and promulgation of the national guidance remained unclear, and the forthcoming Module 3 report of the Covid-19 Inquiry could materially affect how the claims were advanced and defended.
4. The issue was irrelevant to a substantial cohort of claimants. Even if the defendants succeeded, the claims would continue because the defendants’ own conduct in relation to their employees’ duties would still require determination. There was also a real risk of applications to add parties, which could render the preliminary determination irrelevant.
5. The possibility of an appeal from an early determination, particularly where the leading authorities were at Supreme Court level, created a further risk of delay. Although the issue could be resolved relatively quickly at the appropriate time, significant costs would still be incurred, and the claimants’ limited resources were an important consideration.
6. The court also bore in mind the warning in Tilling v Whiteman [1980] AC 1 that preliminary points of law may be treacherous shortcuts. The costs of the hearing were ordered to be in the case.