Preliminary issuesTimes 6 JulyTimes 5 JuneTimes 28 AprilTimes 17 April
7.180Tribunals have power to split one issue from the others in the case and deal with it separately as a preliminary issue. This is a case management power.
1See: UTR r5(3)(e); GRC Rules r5(3)(e); HESC r5(3)(e); IAC Rules r4(3)(e); Lands Rules r5(3)(e); PC Rules r6(3)(g); SEC Rules r5(3)(e); Tax Rules r5(3)(e); WPAFC Rules r5(3)(e).7.181The proper exercise of this power can avoid the time that would otherwise be spent on dealing with other issues that no longer arise given the decision on the preliminary issue. However, if used inappropriately, the practice can increase the time spent on, and the costs of, the case. As Lord Scarman said in
Tilling v Whiteman:
2[1980] AC 1.Preliminary points of law are too often treacherous short cuts. Their price can be, as here, delay, anxiety, and expense.
3[1980] AC 1 at 25.For these general reasons, as well as for others unique to a particular jurisdiction,
4For an example in the employment tribunals, see Morison J giving the judgment of the Employment Appeal Tribunal in Sutcliffe v Big C’s Marine Ltd [1998] ICR 913 at 918–919. the courts regularly counsel against the use of preliminary issues.
5For the views of the House of Lords, see Boyle v SCA Packaging Ltd [2009] ICR 1056.When a preliminary issue is appropriate
7.182David Steel J set out criteria for directing the hearing of a preliminary issue in the Court of Appeal in
McLoughlin v Jones:
6[2002] QB 1312 at [66].In my judgment, the right approach to preliminary issues should be as follows. (a) Only issues which are decisive or potentially decisive should be identified. (b) The questions should usually be questions of law. (c) They should be decided on the basis of a schedule of agreed or assumed facts. (d) They should be triable without significant delay, making full allowance for the implications of a possible appeal. (e) Any order should be made by the court following a case management conference.
The final requirement may be less appropriate in the tribunal context.
7.183Neuberger J gave a fuller list in
Steele v Steele.
7(2001) Times 5 June. (i) Could it dispose of the whole or one aspect of the case? (ii) Could it significantly cut the cost of preparation for the hearing and the hearing itself? (iii) If the issue was one of law, how much effort was required to identify the relevant facts? (iv) If it was one of law, could it be determined on agreed facts? (v) Would the determination of the issue unreasonably fetter the parties or the court in achieving a just result? (vi) Was there a risk that it would increase costs or delay the trial? (vii) How likely was it that the issue would have to be determined? (viii) Was it likely that the determination of the issue against one party would lead to that party presenting a different case in order to avoid the effect of the determination? (ix) Was it just and right to direct a preliminary issue?
7.184Issues of jurisdiction may be decisive of the case
8Potts v IRC (1982) 56 TC 25 at 35. and suitable for decision as a preliminary issue.
When a preliminary issue is not appropriate
7.185An issue can only properly be severed if it is not dependent on any other issue. This difficulty is likely to arise if the issue is one involving both fact and law.
9Waller LJ in Dudarec v Andrews [2006] 1 WLR 3002 at [15].7.186The admissibility of evidence is better dealt with at the substantive hearing rather than as a preliminary issue, because the judge at the hearing will be better informed about the case.
10Mummery LJ in Stroude v Beazer Homes Ltd [2005] EWCA Civ 265 at [10], (2005) Times 28 April.7.187An issue relating to the fairness of a particular course of action must be determined in the context of the evidence and of the case as a whole. It is, therefore, not suitable as a preliminary issue.
11Coles v Barracks [2007] ICR 60.If the preliminary issue does not dispose of the case
7.188Black J considered the status of a decision taken at split hearings in
North Yorkshire County Council v B.
12[2008] 1 FLR 1645. Her reasoning is applicable to the determination of preliminary issues if they do not dispose of the proceedings. The case concerned decisions on different issues by different judges in care proceedings.
13This practice was disapproved by the House of Lords in Re B (Children) (Care Proceedings: Standard of Proof) [2009] 1 AC 11 at [74]–[76]. Her analysis was:
It cannot be argued, in my judgment, that the decisions in care proceedings only crystallise when the court is about to make a final order. I am not saying that decisions are not open to a later attempt to persuade the subsequent judge to change earlier conclusions and findings in the right circumstances. In the right circumstances they can be open to later challenge, and res judicata, or issue estoppel, in its traditional form has a limited place in family proceedings … It may be that the situation is better understood if one recognises that once the court embarks on part one of a split hearing it has, in fact, embarked on the final determination of the care proceedings. The process of determination in a split case is spread out over months, or maybe even more time than that in some cases, but it is still a single process,
14See also the House of Lords in Re B (Children) (Care Proceedings: Standard of Proof) [2009] 1 AC 11 at [74]–[76]. albeit with different hearings, and even in some cases with different judges.
15[2008] 1 FLR 1645 at [17].7.189If the decision on a preliminary issue is not decisive of the case, there may be an issue of how the tribunal should be constituted to deal with the remaining issues. This is discussed in chapter 8.
On appeal
7.190On appeal, a decision to try a preliminary issue should be upheld unless the decision to do so was plainly wrong.
16Ashmore v Corporation of Lloyds [1992] 1 WLR 446; Grupo Torras SA v Al Sabah (No 2) (1997) Times 17 April.