The Chancery Guide at paragraphs 6.10 and 6.11 is practical: consider early (and in any event before the first CMC/CCMC) whether a decisive issue can be tried first, or whether the case should be staged (for example, liability then quantum). It is important to align the case-management proposal with (i) the DQ narrative, (ii) draft directions for the first CMC, and (iii) the costs budget, clearly setting out stage 1 work.

Paragraph 6.37D confirms that this approach also applies to PD51ZG1 and the relevant guidance is set out as follows:

6.10 Costs and time can sometimes be saved by identifying decisive issues, or potentially decisive issues, and ordering that they are tried first. A trial of a preliminary issue may also be appropriate where its determination, although not itself decisive of the whole case, may enable the parties to settle the remainder of the dispute or otherwise shorten the proceedings. An example would be a relatively short question of law which can be tried without significant delay (or much in the way of disclosure or witness evidence) but which would be determinative of one or more of the key issues in dispute.

6.11 Parties should actively consider at the earliest opportunity, and certainly in advance of the first CMC / CCMC, whether there are any issues which are suitable for determination as a preliminary issue, or which should be tried separately such as a split between liability and quantum. If possible, parties should indicate when filing DQs whether a preliminary issue or split trial is under consideration and provide a summary of the proposed approach in Section I of the DQ. Parties should give careful consideration to the approach to costs budgeting and disclosure where a preliminary issue or split trial is proposed or agreed.

Practical steps (for one party, or both parties by agreement)

• Confirm whether PD51ZG1 applies (including any dispute about whether the claim is £1m or more / seeks only non-monetary relief) and diarise the budgeting steps.
• Define the preliminary issue / split with precision: what is being tried first, why it is (potentially) decisive, and what it will remove from the remainder of the case.
• Stress-test the procedural footprint for stage 1: what (if any) disclosure, witness evidence and expert evidence is genuinely required now, and what can properly be deferred.
• Shape budgeting assumptions to match staging: make clear which work/phases are included in stage 1 and what is excluded (with a mechanism to revisit later if a second stage remains).
• Engage early with the other side to narrow the issue(s) and, if possible, agree directions (or at least exchange short position statements before the CMC).
• Use the DQ and draft directions to put a workable proposal before the court: issue(s), estimated hearing length, evidence/disclosure limits, listing window, and what happens after determination (ADR/stay/further directions).
• Be ready on proportionality: a short comparison of time/cost for “single trial” vs “preliminary issue/split” is often what makes the application persuasive at the first CMC.

If you want a preliminary issue or split trial, the practical route is to define the issue tightly, demonstrate a genuinely reduced stage 1 footprint (disclosure/evidence), and present a directions and budgeting proposal the court can adopt at the first CMC.

The full guide can be found here: The Business and Property Courts of England & Wales Chancery Guide 2022

Anna Lockyer is a Senior Associate in the Costs and Litigation Funding Department at Clarion Solicitors. You can contact the team at civilandcommercialcosts@clarionsolicitors.com.