Consolidation of Claims: When Will the Court Order Two Cases to Be Heard Together?
In complex litigation, it is not uncommon for two or more claims to arise out of the same incident, involve overlapping evidence, or raise issues that are closely connected.
In such circumstances, the parties may consider whether the claims should be consolidated, or whether they should remain separate but be managed and/or tried together.
While these options can provide significant savings in time and costs, consolidation is not automatic. The Court must consider the circumstances of the individual claims and determine what approach best serves the overriding objective.
What Is Consolidation of Claims?
The Court has broad case management powers under CPR 3.1(2). These include the power to:
- consolidate proceedings under CPR 3.1(2)(h); and
- order two or more claims to be tried on the same occasion under CPR 3.1(2)(i).
Although these powers can have similar practical effects, there is an important distinction between them.
Where proceedings are consolidated, the separate claims are combined and thereafter proceed as one claim. This can avoid duplication in pleadings, pre-trial steps, applications and other procedural matters.
Alternatively, the Court may decide that formal consolidation is unnecessary but that the claims should be tried together. This allows the Court to preserve the separate identity of the proceedings while still taking advantage of overlapping evidence and avoiding the risk of inconsistent findings.
In some cases, joint case management may provide an appropriate middle ground.
What Factors Will the Court Consider When Consolidating Claims?
There is no single test that determines whether claims should be consolidated. Instead, the Court will consider the circumstances of the particular cases and balance a number of competing factors.
In Al Sadeq v Dechert LLP and others [2021] EWHC 1149 (QB), the Court identified a number of principal considerations when deciding whether claims should be heard together.
These include:
- Prejudice and delay
The Court will consider whether bringing the claims together would cause prejudice to any of the parties.
This may include the effect of delaying one claim to accommodate the timetable of another, particularly where one claim is ready to proceed to trial considerably sooner.
The Court will also consider the potential impact of any delay on witnesses and the parties themselves.
- The degree of overlap between the claims
The extent to which the claims overlap is an important consideration.
The Court may look at the extent to which the proceedings involve:
- common factual issues;
- common legal issues;
- the same witnesses;
- overlapping expert evidence; and
- the same or similar documentary evidence.
The greater the degree of overlap, the stronger the argument may be for the claims to be dealt with together.
However, the fact that two claims arise from the same circumstances does not necessarily mean that all issues will be identical. The Court will consider the extent to which each claim requires separate consideration.
- The risk of confusion
The Court must also consider whether combining the claims could create a risk of confusion.
There may be circumstances in which evidence relevant to one claim could have an unintended or unfair influence on the Court’s assessment of another claim.
This is sometimes described as the risk of the Court unconsciously allowing the evidence or merits of one claim to affect its determination of another.
The Court will therefore consider whether the issues can be kept sufficiently distinct if the proceedings are heard together.
- The risk of inconsistent judgments
Conversely, keeping closely related claims separate may create a risk that different Courts, or even the same Court at different times, reach inconsistent findings on common factual or legal issues.
Avoiding inconsistent judgments is an important consideration and can weigh in favour of consolidation or a joint trial.
- Costs and use of Court resources
The Court will consider whether dealing with the claims together is likely to result in savings in legal costs and Court resources.
Where two claims involve substantially the same witnesses, experts and documents, hearing them separately may result in unnecessary duplication.
A joint hearing may therefore allow the Court to deal with common evidence once, rather than requiring parties and witnesses to participate in separate proceedings addressing substantially the same issues.
- Whether case management can provide an alternative
Finally, the Court will consider whether the perceived benefits of consolidation or a joint trial can be achieved through other case management measures.
For example, it may be possible to manage two separate claims so that they are heard by the same Judge, or so that particular common issues are dealt with in a coordinated manner.
This can sometimes achieve the advantages of avoiding inconsistent decisions and unnecessary costs without the need to formally consolidate the proceedings.
Consolidation is not always the appropriate solution
Importantly, the fact that claims have significant similarities does not necessarily mean that consolidation is appropriate.
The Court must consider whether formal consolidation is necessary or desirable, rather than simply whether it is possible.
The White Book commentary to CPR 3.1 recognises that some of the advantages of consolidation may instead be achieved by directing that the claims be tried on the same occasion.
This distinction can be particularly important where the claims have different issues, different procedural histories, different parties or different stages of development.
In some circumstances, keeping the proceedings formally separate may be preferable while still allowing the Court to coordinate their management.
When Should You Apply for Consolidation?
An application for consolidation should generally be made as soon as it becomes apparent that consolidation may be necessary or desirable.
The timing of an application can be important.
Where proceedings are consolidated at an early stage, there may be significant savings because the parties can avoid duplicating pleadings, disclosure, witness evidence, expert evidence and interlocutory applications.
By contrast, if an application is made later in the proceedings, consolidation may itself create additional costs. For example, pleadings may need to be redrafted and previous procedural steps may need to be revisited.
The Court will therefore consider the stage that each claim has reached when deciding whether consolidation is appropriate.
Consolidation vs Joint Trial: What Is the Difference?
The distinction between consolidation and a joint trial is therefore important.
Consolidation combines the proceedings so that they proceed as one claim.
A joint trial, on the other hand, allows separate proceedings to remain separate while being tried on the same occasion.
The Court may also use its case management powers to coordinate separate claims without either formally consolidating them or ordering a joint trial.
The appropriate approach will depend upon the circumstances of each case.
The overriding objective
Ultimately, the Court’s decision will be guided by the overriding objective and what is fair and proportionate in the circumstances.
The Court will balance the potential benefits of dealing with claims together against any prejudice or practical difficulties that may arise.
The key considerations are likely to include:
- the extent of the factual and legal overlap;
- the risk of inconsistent findings;
- the potential for confusion;
- the costs and time involved in separate proceedings;
- the stage reached by each claim;
- the potential prejudice caused by delay; and
- whether the same objectives can be achieved through alternative case management measures.
As demonstrated by Al Sadeq v Dechert LLP and others [2021] EWHC 1149 (QB), the Court will ultimately undertake a balancing exercise, considering the particular circumstances of the claims before it.
Conclusion
Consolidation can be a valuable case management tool where two or more claims are closely connected. It can reduce duplication, save costs and Court resources, and reduce the risk of inconsistent judgments.
However, consolidation is not necessarily the appropriate solution in every case. Depending upon the circumstances, a joint trial or carefully coordinated case management may achieve many of the same benefits while allowing the claims to remain procedurally separate.
For parties involved in complex or related litigation, it is therefore important to consider at an early stage whether consolidation, a joint trial or alternative case management directions would provide the most proportionate and effective way of progressing the claims.
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