Airwave Solutions Limited v The Secretary of State for the Home Department & Anor

A preliminary issue should generally be ordered only where it is decisive or potentially decisive, raises a sufficiently precise question, can be tried promptly on agreed or assumed facts, and is likely to produce a worthwhile saving in time or cost. The court must also account for factual uncertainty, the risk of fettering the eventual trial, possible amendments, settlement prospects and any appeal.

Where the proposed issue is still developing, requires factual investigation, would disrupt an expedited trial and would not determine a substantial part of the proceedings, it is ordinarily unjust to order a separate hearing. Alternative strike-out or summary-judgment applications requiring determination of the same undeveloped issues may properly be adjourned.

The claimant challenged the defendants’ reliance on allegations concerning Motorola’s performance of an Emergency Services Network contract. It sought a preliminary determination that those allegations were precluded by a settlement agreement, alternatively their strike-out or summary dismissal under the Civil Procedure Rules.

The application was made while the proceedings were progressing towards an expedited trial. The court had to decide whether the proposed contractual issue was sufficiently defined and suitable for separate determination, having regard to factual matrix, delay, preparation for trial, costs, settlement prospects and any possible appeal.

1. Application for a preliminary issue dismissed. The proposed issue was not sufficiently mature or precisely formulated. The claimant’s case had expanded from reliance on clause 6.3 of the settlement agreement to clauses 6.1 and 12, an assignment, and additional issues concerning enforcement and abuse of process. The parties had not properly identified the contractual questions or the factual matrix required for construction.
2. The court applied the general guidance summarised in McLoughlin v Grovers (A Firm) [2001] EWCA Civ 1743, the factors identified in Steele v Steele [2001] CP Rep 106, and the cautionary approach in Rossetti Marketing Limited and another v Diamond Sofa Company Limited [2012] EWCA Civ 1021. A preliminary issue should usually concern law, proceed on agreed or assumed facts, be capable of prompt determination allowing for an appeal, and be decisive or materially reduce the scope, cost or settlement difficulty of the action.
3. Those criteria were not met. The claimant had delayed bringing the application. A separate hearing would divert resources from disclosure and preparation for the expedited trial. On the realistic timetable, judgment would be given shortly before trial and an appeal was likely, so the parties would have to prepare the trial without knowing whether the preliminary decision would stand.
4. The proposed issue would not determine the claim or a distinct part of it. At most, it would affect the matters available to support some defence contentions. Any saving at trial had to be balanced against the additional cost and time of the separate hearing. The prospect of settlement was insufficiently established.
5. The alternative applications for strike-out or summary dismissal on the same grounds were adjourned generally because they required determination of the same undeveloped issues. The defendants were directed to serve a further draft Re-Amended Defence, followed by further pleading, submissions and a hearing. Costs were reserved and liberty to apply was given.

First-instance case-management decision. No appellate history was stated in the judgment.