Modular Trial Discretion: Liability–Causation–Loss of Chance as a Single Module and Quantum Severable Even Where Liability Dominates Trial Time

1) Introduction

In Persona Digital Telelphony Ltd and Anor v Minister for Public Enterprise and Ors, Ganley and Ors v. Minister for Public Enterprise and Ors [2026] IEHC 472, the High Court (Ms Justice Emily Egan) delivered a case-management judgment in long-running proceedings arising from the State’s 1995 competition for the second GSM mobile telephone licence. The plaintiffs (two disappointed tendering consortia) allege that corrupt interference in the tender process caused them loss, including loss of profits and/or a loss of opportunity (loss of chance) to win the licence.

The judgment determined two procedural applications: (i) a consent application that the related proceedings be tried in tandem before the same judge with common evidence heard once; and (ii) a contested application (opposed by one plaintiff group) for a modular trial broadly dividing liability/causation/loss of chance from quantum.

2) Summary of the Judgment

1. Trial in tandem ordered on the basis of near-complete factual overlap, efficiency, avoidance of inconsistent findings, absence of material prejudice, and the public interest in conserving scarce court resources.
2. Modular trial ordered, with an important clarification that loss of opportunity/loss of chance must be determined in Module 1 (as part of causation and liability), and that modularisation may be appropriate even where:
   • the liability module is much longer than the quantum module; and
   • findings on liability will not necessarily shorten the quantum hearing.
3. The Court addressed appeal-management concerns by noting that, where plaintiffs succeed on liability, it is possible (and here agreed in principle) to manage timing of appeal so that an appeal does not interrupt progress to quantum (including by controlling when appeal time begins to run).

3) Analysis

3.1 Precedents Cited (and How They Shaped the Decision)

A. Concurrent (Tandem) Trials

• Kalix v. HSBC Institutional Trust Services (Ireland) Limited [2010] 2 IR 581
  Treated as a leading authority for linking/hearing related proceedings together where there is substantial factual/legal overlap, with aims including efficiency and avoiding inconsistent determinations.
• Avoncore Limited & Ors v. Leeson Motors Limited & Ors [2021] IEHC 163
  The Court relied on McDonald J’s synthesis (quoted at para. 9 of the judgment) emphasising: conserving resources, minimising inconsistent findings, and the principle that multiple cases can be assigned to one judge and heard at the same time.
• Noble v. Greenstar Properties Ltd [2024] IEHC 657 and Ryanair DAC v. Competition and Consumer Protection Commission [2025] IEHC 536
  Cited as recent endorsements of the Avoncore/Kalix approach, reinforcing that tandem hearing is a pragmatic case-management tool where overlap is high.

B. Modular Trials (Liability/Quantum Splits)

• Cork Plastics (Manufacturing) & Ors v. Ineos Compound UK Limited & Ors [2008] IEHC 93
  The “starting point” authority: the default is a single trial; modularisation is exceptional and may increase costs in straightforward cases. The Court treated Cork Plastics as providing a non-exhaustive, discretionary factor-set rather than rigid prerequisites.
• McCann v. Desmond [2010] 4 IR 554
  Applied for the “organic whole” caution (do not “tear the fabric” of the case), the need to identify real savings, avoid prejudice, and ensure modularisation is not tactical “wrong-footing”.
• Donatex Ltd v. Dublin Docklands Development Authority [2011] IEHC 538
  Used to simplify the analysis into two overarching questions: (a) is there a logical division likely to save time/costs; and (b) is there “true prejudice” (not merely tactical disadvantage).
• Weavering Macro Fixed Income Fund Ltd v. PNC Global Investment Servicing (Europe) Ltd [2012] 4 IR 681
  A key cautionary authority where the Supreme Court intervened to set aside a modular direction due to unclear module boundaries and risk of inefficiency/unfairness. The Court distinguished Weavering as addressing problematic attempts to split parts of liability across modules, whereas the present order puts all liability and causation (including loss of chance) into Module 1.
• Ryanair DAC v. Skyscanner Ltd [2022] IEHC 696, Nolan v. Dildar [2020] IEHC 243, and Bradley v. Birthistle [2021] IEHC 695
  These illustrate refusals where issues were too interlinked and/or module boundaries too imprecise, creating duplication and prejudice. The Court used them to emphasise that modularisation fails where the first module is an “overly simplistic” carve-out or where damages/causation/credibility are tightly intertwined.
• James Elliott Construction Ltd v. Lagan [2016] IEHC 599
  Demonstrates refusal where modularisation would impair the ability to test credibility/clean hands in a holistic way. The Court found no comparable risk here.

3.2 Legal Reasoning

A. Tandem Trial: Inherent Jurisdiction and Practical Necessity

The Court grounded the tandem-trial order in the High Court’s inherent jurisdiction to control its own process to achieve the “just, expedient and economical” determination of disputes. The reasoning is notably fact-driven:

• Near-total overlap in factual matrix, documentation, witnesses, and legal teams;
• Efficiency and fairness in hearing common evidence once, particularly given the age of witnesses and the time elapsed since the events;
• Avoidance of inconsistent findings on central historical facts and decision-making;
• Public interest in conserving court time and reducing duplicative trials of “roughly the same ground”.

B. Modular Trial: The Key Clarifications in This Judgment

(i) Loss of chance must sit with liability/causation in Module 1

A central move in the Court’s logic is the insistence that if the trial is bifurcated, then causation—including loss of opportunity/loss of chance—must be determined in the liability module. The Court treated loss of chance not as a mere valuation question, but as part of the causal bridge between wrongdoing and legally cognisable damage. This addresses the McCann v. Desmond concern that carving out damages can “tear the fabric” where damage is intricately woven into liability proofs.

(ii) Overlap analysis: historic wrongdoing vs forward-looking valuation

The Court found limited overlap between the evidence relevant to (a) historical allegations of corrupt interference and tender decision-making and (b) the counterfactual, technical and financial modelling required to value a licence and profits over time. Any recall of some consortium witnesses was treated as manageable and outweighed by potential savings.

(iii) Relative vs absolute module length: not a bar to modularisation

The judgment squarely addresses a recurring objection: that modularisation makes little sense where liability dwarfs quantum. The Court held that:

• Relative duration/complexity is relevant, but absolute quantum length that may be avoided also matters.
• Modular trial may be justified even if liability is “far longer” than quantum, because “even a relatively limited proportion” of a very long case may still represent many weeks of court time and major cost exposure.

(iv) “Shortening quantum” is helpful but not required

The Court rejected an approach that would treat “quantum-abbreviation through liability findings” as a prerequisite. Instead, it treated this as one factor among many. The Court accepted that a liability judgment may provide an “established bed of factual findings” that can narrow permutations and streamline quantum, but emphasised that modularisation may still be ordered even if such narrowing cannot be quantified in advance.

(v) Costs/time saving: the Court’s “50%” framing

The Court adopted the practical assumption (for case-management purposes) that success and failure on liability are equally possible. On that basis, a unitary trial creates a 50% risk that a complex quantum hearing proves unnecessary. Given the pleaded multi-method valuation cases (in the billions), the Court considered the potential savings too large to ignore.

(vi) Appeals: managing interruption risk

The Court recognised that modularisation can invite an “intermediate appeal” after Module 1, potentially delaying final resolution. It mitigated that by noting procedural tools (as discussed in Cork Plastics) to keep the case moving—particularly where the parties agree to defer any appeal until after quantum where liability is found. The Court also flagged a tailored management issue for a defendant plea of lack of locus standi in one set of proceedings, directing (subject to possible agreement) that any appeal should generally await conclusion of the overall proceedings so as not to hold up the other plaintiffs’ quantum module.

3.3 Impact

A. Practical precedent for very large, document-heavy, overlapping proceedings

The tandem-trial order reinforces that where multiple plenary actions arise from the same state procurement/competition event, the High Court will lean toward a single judge, a single hearing of common evidence, and bespoke trial protocols to prevent duplication and inconsistency.

B. A clearer Irish approach to liability/quantum modularisation

The judgment’s most significant contribution is its clarification of discretion under Cork Plastics/McCann v. Desmond/Donatex: modular trial is not confined to cases where (i) the modules are of similar size or (ii) liability findings are likely to abbreviate quantum. Courts may focus on the absolute scale of potentially avoidable quantum litigation and the systemic benefits of not trying damages “just in case”.

C. Doctrinal positioning of “loss of chance” in tender-corruption litigation

By insisting that loss of opportunity be tried in Module 1, the Court effectively positions loss of chance as a liability-stage issue (bound up with causation and proof of damage) rather than a purely remedial calculation. That allocation may influence future Irish litigation strategy in procurement, public law damages, misfeasance, and economic tort claims where “but for” causation is disputed.

D. Case-management guidance on appeal sequencing

The judgment is also a template for managing appeal risk in modular trials: parties can be invited (or required, where appropriate) to adopt sequencing arrangements that preserve momentum and avoid an automatic appellate “pause” between modules.

4) Complex Concepts Simplified

• Trial in tandem: Two (or more) separate cases are heard together before the same judge. Common witnesses/documents are heard once, but the judge can still make separate findings and orders in each case.
• Modular trial: The case is split into phases (modules). Here, Module 1 decides whether wrongdoing happened and caused compensable loss (including loss of chance). Module 2 (only if needed) decides how much money is payable.
• Loss of chance / loss of opportunity: A claim that the wrong did not necessarily deprive the plaintiff of a guaranteed outcome, but deprived it of a real and substantial opportunity (often expressed as a percentage probability) of a favourable outcome.
• “Tearing the fabric”: A warning that splitting issues can be unfair/inefficient if the issues are so interconnected that deciding one without the other distorts the overall picture.
• True prejudice vs tactical disadvantage: “True prejudice” means real unfairness (e.g., inability to present a case properly), not merely that one party loses a strategic advantage.
• Locus standi: Whether a party has the legal standing/entitlement to bring the claim.

5) Conclusion

[2026] IEHC 472 is an important High Court case-management decision in complex, overlapping litigation. It consolidates the modern Irish approach to hearing related proceedings together to avoid duplication and inconsistency, and it clarifies that a liability/quantum modular split can be justified by the absolute scale of potentially avoidable quantum litigation—even where liability will be the dominant portion of trial time and even where liability findings may not materially shorten quantum. Critically, it also directs that where modularisation is ordered in this type of case, loss of chance belongs in the liability/causation module, ensuring that the first module resolves whether the plaintiffs have proven compensable harm before the court embarks on the expensive exercise of valuation.