High Court allows modular trial of specific causation issues in medical negligence case to save costs.

THE HIGH COURT

[Record No. 2022/1444P]

[2025] IEHC 156

BETWEEN

IARLA THOMPSON (A MINOR) SUING BY HIS PARENTS AND NEXT

FRIENDS SINÉAD THOMPSON AND STEPHEN THOMPSON

PLAINTIFFS

AND

HEALTH SERVICE EXECUTIVE

DEFENDANT

JUDGMENT of Ms Justice Reynolds delivered on the 5th day of March 2025

Introduction

1. This judgment relates to an application brought by the defendant seeking a modular trial of two distinct questions of fact before any other issues are litigated in the within action.

Background

2. Medical negligence proceedings issued on behalf of the plaintiff (a minor who was born on 18 February 2013), by his parents in March 2023. In the personal injury summons, it is alleged that the plaintiff was caused to suffer severe personal injuries at birth arising from the negligence and breach of duty of the defendant, its servants, or agents in his ante-natal and post-natal care. Consequentially, it is alleged that the plaintiff suffered hypoxic ischemic encephalopathy which resulted in developmental delay and autism spectrum disorder.

3. At the core of the plaintiff’s claim (as initially pleaded) was an assertion that the Cardiotocography (“CTG”) indicated a need for expedited delivery of the plaintiff and the alleged delayed delivery led to the plaintiff’s poor condition at birth.

4. However, after the delivery of an amended defence (December 2023) and after the exchange of expert reports, an application was made to amend the plaintiff’s claim. This arose in circumstances where a new expert report was obtained by the plaintiff’s solicitor from Mr Gerald Mason, Consultant in Feto-Maternal Medicine. The report cast a new light on analysis of the CTG in circumstances where Mr Mason concluded: “All evidence points to a failure to monitor the foetal heartrate in labour instead recording a maternal rate.”

5. Thereafter, an application was brought to amend the plaintiff’s claim in light of his findings. In an earlier ex temp judgment delivered on 20 March 2024 (see: [2024] IEHC 751) I acceded to the application for the reasons outlined.

6. An amended personal injury summons was delivered on 27 March 2024. In essence, it is now alleged that the defendant failed to identify that the CTG was recording the maternal heart rate rather than the foetal heart rate on 18 February 2013 and consequently failed to recognise a worrisome foetal CTG trace much earlier in labour, resulting in an alleged delayed delivery of the plaintiff at 30-60 minutes prior to the onset of terminal bradycardia. An amended defence was then delivered wherein all allegations of breach of care are denied by the defendant.

7. The parties had previously agreed a split trial between the liability and quantum issues premised on the plaintiff’s case as originally pleaded. However, and arising from subsequent delivery of amended pleadings, the defendant now asserts that issues have crystalised as questions of fact that are appropriate for a modular trial.

The Application

8. In a notice of motion dated 11 October 2024 the defendant sought the following relief: “1. An Order pursuant to O.36, r.9(1) of the Superior Court rules directing that the following questions of fact be tried before any other in a modular trial, namely:

(i) Did the Defendant fail to identify that the CTG was recording the maternal heartrate rather than the foetal heartrate on 18 February 2013?, and

(ii) Was the Defendant in breach of duty by not intubating the Plaintiff from 13.33 on 18 February 2013?”

9. In the grounding affidavit of Padraic Brennan, solicitor for the defendant, he avers that the entire basis of the allegations of breach of duty during labour is now premised upon the purported failure to identify that the CTG was recording the maternal heart rate rather than the foetal heart rate, and has been advised that if the court determines the CTG was recording the maternal heart rate (and not the foetal heart rate) the allegations of breach of duty during labour fail completely.

10. He further avers that at the core of the alleged breaches in the neonatal period is the contention that the plaintiff should have been intubated from 13.33 on 18 February 2013 when his CO2 was recorded at 10.9 Kpa, which was approximately six hours before he was intubated. Again, he avers that if the court determines that the defendant was not in breach of duty in deciding not to intubate the plaintiff from

13.33 on 18 February 2013, consequently the plaintiff’s allegation of breach of neonatal care fails.

11. He concludes by highlighting the potential savings in costs and court resources in proceeding with a modular trial (which is estimated to take some four to five weeks) as opposed to the estimated period of twelve weeks plus for a unitary trial.

12. In the replying affidavit of Cian O’Carroll, solicitor for the plaintiff, he concedes that the CTG is an important issue of fact arising in this case but contends that the evidence to be called on behalf of the plaintiff should not be restricted to obstetrics alone and refers to other evidence the plaintiff will be relying on in respect of this issue.

13. In relation to the second issue, Mr O’Carroll avers that the alleged “breach of duty by not intubating the plaintiff from 13.33 on 18 February 2023” is not a discrete issue of fact but rather “a mixture of specific fact and negligence related issues”, and avers that given the complexities and costs involved it is not possible to “dispose fairly” of the claim by refining the issues as identified for a modular trial.

14. Further, Mr O’Carroll avers that there are “freestanding” allegations of negligence which appear to pertain to matters of sampling and recording after the delivery of the plaintiff. Notably, no case is advanced that the injuries alleged were the result of any one or all these allegations.

15. In a supplemental affidavit filed on behalf of the defendant, Mr Brennan avers that Mr. O’Carroll does not take issue with the “central assertion” in his grounding affidavit that the entirety of the allegations of breach of duty during labour are premised upon the purported failure by the defendant to identify that the CTG was recording the maternal heart rate (rather than the foetal heart-rate). Further, he contends that the plaintiff is conflating allegations of breach of duty with the assertions of sequela alleged to have been caused by the alleged breach of duty. He disputes the contention that a modular trial would require a determination of “a mixture of specific fact and negligence related issue.”

Legal Principles

16. It is common case that the court has jurisdiction to make an order of the nature sought in this application. In addition to O.36, r.9(1), the court has an inherent jurisdiction to make an order directing a modular trial, and while O.36, r.9(1) addresses itself to the language of the questions of fact, the jurisprudence indicates that the court, in exercising its inherent jurisdiction, is permitted to direct a modular trial as it sees fit in relation to issues arising in the course of a case, if it considers it appropriate to do so.

17. This was highlighted by the Supreme Court in Weavering Macro Fixed Income Fund Limited v PNC Global Investment Servicing (Europe) Limited [2012] 4 IR 681 where Clarke J. stated: “…there was a jurisdiction in the court, as part of its inherent jurisdiction to regulate the manner in which the trials were conducted, to direct a modular trial as a result of which some issues were determined ahead of others.”

18. Clarke J went on to state: “It was also possible to have an issue of fact tried where the case would almost completely depend on a resolution of that factual question. What issues were tried first in a modular trial, the court was simply hearing all matters relevant to those issues, be it fact or law, and coming first to a conclusion on those issues. If, while hearing such a module, the court came to the view that it could not safely reach a final conclusion on some or all of the issues to be determined in that module without also entering into evidence and legal argument relevant to some issue originally intended to be tried at a later stage, then the court could act in an appropriate way to ensure that no injustice was caused.”

19. Therefore, there is an obligation on the court, in embarking on a modular trial, to ensure that justice can be achieved in proceeding in that manner and if at any stage the court considers otherwise, then the court can take such steps as are necessary to ensure that no injustice is caused.

20. The Supreme Court went on to determine that there may be “a range of practical circumstances” to which the court should have regard in deciding whether there was likely to be a “net benefit” in proceeding with a modular trial and that such factors were likely to vary depending on the circumstances of the case in question.

21. In an earlier decision Cork Plastics (Manufacturing) v Ineos Compound U.K. Limited [2008] IEHC 93, Clarke J. stated: “There can be little doubt that the default position is that there should be a single trial of all issues at the same time.” He then went on to identify general considerations likely to apply in many cases including the likely length and complexity of the trial; the expense and resources required; the likely relative length and complexity of the respective modules which might be proposed and importantly, the necessity to place significant weight “on any real suggestion that true prejudice (rather than a perceived tactical prejudice) might occur by the absence of a unitary trial”. These principles and considerations were reviewed and endorsed by Clarke J. in the latter decision in Weavering.

22. In McCann v Desmond [2010] 4 IR 554, Charlton J. also identified, on a nonexhaustive basis, similar considerations in terms of clear saving of court time and costs, the potential issue of prejudice to any of the parties but also whether the issues sought to be tried were “readily capable of determination in isolation from the other issues in dispute between the parties” and would “genuinely assist the litigation by being of help to the resolution of the issues”.

23. For the sake of completeness, the authorities also cite the possibility of an appeal against a determination in a modular trial as a matter for the court’s consideration. This is in circumstances where such an appeal could be utilised as a mechanism to delay the further trial of the action. The issue is moot here where assurances have been provided by the defendant that in the event that it is successful in agitating for the trial of the two proposed issues - but unsuccessful in the determination of either or both of those issues - an appeal would not be deployed to delay the further trial of the action.

Application to the Facts of this Case

24. Arising from the exchange of amended pleadings in this case, it is readily apparent that the breach of duty issues have narrowed such that the core issue now is whether the CTG was recording the maternal heart rate, and consequently whether any proper monitoring of the foetal heart rate was taking place. This was acknowledged by Mr O’Carroll in his grounding affidavit seeking to amend the plaintiff’s pleadings where he avered: “The aforementioned amendments are necessary for the purpose of determining the real questions of controversy between the parties arising out of the reports provided by either side’s respective expert witnesses.” He further avered:

“…However, should said amendments be refused, the minor plaintiff will very likely have to withdraw his case, as it is now apparent that the CTG trace upon which the liability criticisms have been made is not in fact a recording of the foetal heart rate but is rather that of his mother.”

25. It is readily apparent that in the event the court determines it was the foetal heart rate that was being recorded, all criticisms and allegations of inadequate monitoring and the alleged failure to identify foetal distress will necessarily fall away and the issue of alleged breach of duty during labour will be resolved.

26. In relation to the intubation issue, it is common case that there was a recording of the plaintiff’s CO2 at 13.33 on 18 February 2013 at 10.9Kpa. The allegation in this regard is that the recording: “… is a brain-damagingly high level, particularly in the situation of post hypoxic ischaemic brain insult and the Plaintiff should have been intubated.” The case being made is that the plaintiff ought to have been intubated from 13.33 (approximately six hours before he was intubated). That decision to intubate or not to intubate is an issue which will fall to be determined in accordance with the Dunne principles regarding the decisions made on that date in that regard.

27. Whilst Mr O’Carroll has identified these issues as being central to or indeed the cornerstone of the plaintiff’s case without which the claim would either likely be withdrawn or be liable to fail, it appears he is now seeking to resile from that position and asserts that there are a series of causation experts “all of whom can give vital insights into the causes and evolution of the minor Plaintiff’s brain injury”. Notably, he fails to identify any material facts which will be elicited from such evidence or how this evidence is germane to the proposed issues for a modular trial.

28. Whilst there are further “freestanding” allegations of negligence in relation to sampling and recording after the delivery of the plaintiff, no case is advanced that the injuries alleged were the result of any one or all these allegations.

Determination

29. It is clear from the authorities that the onus rests on the defendant, the moving party in this application, to establish at the outset that a clear saving of court time, resources and costs can be achieved by directing a modular trial. It is common case now (after further engagement between the parties) that a unitary trial of considerable complexity would take in the order of 16 weeks whilst the defendant has anticipated that a modular trial would conclude within a period of 4-5 weeks. The plaintiff’s position is that it may take longer if additional evidence is required to be heard by the court over and above what is envisaged by the defendant in the timetables presented to the court.

30. In my view, it is irrefutable that a clear saving in court time and costs of the parties would be achieved if a modular trial of the type sought was directed. Both parties acknowledge that a unitary trial would be both lengthy and complex. Inevitably, a modular trial would generate an efficient use of time and resources.

31. Further, I am satisfied for the reasons outlined above that the issues identified by the defendant are discrete issues which are “capable of being determined independently of the balance of the trial.” I do not accept the contention that a modular trial would be in any way prejudicial to the plaintiff’s interest and inimical to a fair trial. In my view, the plaintiff has failed to demonstrate any real prejudice in this regard, and I am satisfied that the matters raised are not relevant to the determination of the issues, and not intrinsically interconnected as alleged.

32. Even if I am wrong on that, the court whilst embarking on a modular trial retains a discretion to act “in an appropriate way” to ensure that no injustice is caused to the parties (as per Weavering). In the event the court determines that it cannot “safely reach a final conclusion” on one or both of the issues to be determined then the court can act to ensure that no injustice is caused by directing further evidence and legal argument relevant to the issue intended to be tried at a later stage in the trial.

33. On balance, therefore, I am satisfied that there is a “net benefit” in proceeding with the modular trial as sought. I propose to list the matter for mention to hear further from the parties in terms of the order to be made.