Cross v Attorney-General [1989] SBHC 8; HC-CC 043 of 1989 (12 December 1989)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 43 of 1989

SHEILA CROSS

-v-

ATTORNEY GENERAL

High Court of Solomon Islands
(Ward C.J.)

Hearing: 7 December 1989
Judgment: 12 December 1989

J. Corrin for Plaintiff
R. Teutao for Defendant

WARD CJ: There is an application by the plaintiff in this case for the question of liability to be decided first and damages considered later. Counsel for the defendant opposes this on the ground that there is no power to do so under our Civil Procedure Rules.

I do not need to go into the facts here. I have considered them and find that, if there is a power to order separate trial of liability and quantum, this is a case where I clearly should do so.

Miss Corrin cites the present 033 r4 of the English Rules of the Supreme Court. Under that order, there is clear authority for the proposition that she makes. Under the English rules, the normal rule is that both liability and damages should be tried together but the Court is able to, and should, order separate trials where it is just and convenient to do so; Coenen v Payne (1974) 1 WLR 984, but this will only be ordered where there is a clear line of demarcation between the different issues; Polskie v Electric Furnace Co Ltd (1956) 2 AER 306.

Mr Teutao has pointed out the case of Tilling v Whiteman (1979) 2 AER 401 where, he says, the House of Lords disapproved of the practice of trying issues separately. I do not feel that case assists him. The comments made were about the trial of a preliminary point of law in a case where the learned Law Lords felt the ascertainment of the facts would have taken a few minutes and would probably have decided the case thus avoiding the need for such an appeal. I do not feel it applies to a case such as this.

Miss Corrin suggests to the Court that, as our rules do not include an equivalent rule to O33 r4, the Court may, by O71, adopt the English rule.

The former English O36 r 1(2) reads:

"In any such action, different questions (whether of fact or law) may be ordered to be tried at different places by different modes of trial and one or more questions may be ordered to be tried before the others,"

and gave rise to the present O33 r4. However, although the draftsman of our Rules included an equivalent of the old O36 r1(1) (our O38 r1) and O36 r1(3) (our O38 r2), they did not include any equivalent to O36 r1(2). Mr. Teutao suggests that if it was clearly omitted, there must be a reason and this court cannot now use O71 to put it in.

I disagree. First of all, I do not accept that O36 r1(2) added a power that was not present in rule 1(1). It refers specifically to the separate trial of issues but that is, I feel, am amplification of the power under rule 1(1) "to determine the ......mode of trial." I feel the use of those words in our O38 r1 includes the power to order that some questions be tried before others.

Even if I am wrong on that, I feel the matter is covered under the saving provision of O71. The terms of that Order provide that where "no provision is made by these Rules" the current English Rules should be followed so far as they can be conveniently applied. There is nothing there to say that, if such a rule as the English O36 r1(2) has been omitted, it must always be omitted as Mr Teutao suggests. In fact, it states the exact opposite.

There is no rule equivalent to the present English O33 r 4 and so it must be considered to be in force in this court.

I feel that the facts show there is a clear line of demarcation between the issue of liability and damages and it is just and convenient that liability should be decided first. As I have said already, this is therefore a proper case to make such a order and I do.

(F.G.R. WARD)
Chief Justice