PT (A Minor) suing by his parents and next friends LT and MT v Health Service Executive

APPROVED NO FURTHER REDACTION NEEDED THE COURT OF APPEAL Court of Appeal Record No.: 2025/85 High Court Record No.: 2022/1444 P Neutral Citation No.: [2025] IECA 291 Whelan J. Binchy J. Hyland J. BETWEEN/ PT (A MINOR) SUING BY HIS PARENTS AND NEXT FRIENDS LT AND MT PLAINTIFFS/ APPELLANTS - AND - HEALTH SERVICE EXECUTIVE DEFENDANT/RESPONDENT JUDGMENT of Mr. Justice Binchy delivered on the 22nd day of December 2025 1. By these proceedings, the plaintiff/appellant alleges that, owing to the negligence and breach of duty on the part of the defendant/respondent in the provision of obstetric, anti- natal, neonatal and paediatric advice, care and/or treatment, the appellant was caused severe personal injury, loss, damage, inconvenience and expense. By order made on 18th March 2025, and perfected on 1st April 2025, the High Court (Reynolds J.) ordered 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 cardiotocography (“CTG”) was recording the maternal heart rate rather than the foetal heart rate on 18th February 2013; and -2- (ii) Was the defendant in breach of duty by not intubating the plaintiff from 13:33pm on 18th February 2013? This judgment is concerned with an appeal brought by the appellant from the said order of the High Court. Background 2. The appellant was born on 18th February 2013 in Hospital X. The appellant was initially diagnosed with hypoxic ischaemic encephalopathy (“HIE”) and subsequently diagnosed as suffering from other conditions, including a neurodevelopmental impairment and Autism Spectrum Disorder. The appellant contends that these conditions were caused by the negligence and breach of duty on the part of the respondent, and as a result issued proceedings against the respondent on 11th April 2022. The case was first listed for hearing on 30th January 2024 before Reynolds J., when the appellant applied for and was granted an order to facilitate a consultation with the appellant’s expert neonatologist. On 4th February 2024, the appellant obtained a report from a Consultant in Feto Maternal Medicine, Dr. Gerald Mason as a result of which the appellant applied to Reynolds J. for a further adjournment in order to facilitate an application to amend the personal injuries summons. The adjournment was granted, and Reynolds J. subsequently heard and granted the appellant’s application on 20th March 2024. An amended personal injuries summons dated 27th March 2024 was subsequently delivered, and, following service of a notice for particulars arising out of the same on 12th April 2024, and delivery of replies thereto on 25th April 2024, an amended defence was delivered on 7th June 2024. 3. It should be noted that shortly prior to the appellant’s request to adjourn the trial in January 2024, the solicitors for the respondent wrote to the solicitors for the appellant signaling their intention to make application to the court for a split trial to the intent that the issues of liability and causation would be determined by the court in the first instance, with -3- the issue of quantum to be dealt with thereafter if the appellant succeeded on the issues of liability and causation. The appellant agreed to that proposal. 4. The amendments to the personal injuries summons significantly altered the case being made by the appellant. In the personal injuries summons as originally issued, the appellant had asserted a failure on the part of the respondent to take appropriate action in the light of the results of CTG monitoring, on the basis that the results indicated a need for intervention, and in particular it was alleged there was a failure to determine the duration of bradycardia and to act promptly when it occurred. In the amended personal injuries summons, it was claimed, that the CTG was, unbeknownst to the obstetrics’ team attending the delivery, erroneously monitoring the maternal heart rate rather than the foetal heart rate, as a result of which the CGT indicated a normal trace, thereby concealing the appellant’s condition and the need for intervention. This change in the appellant’s case was prompted by the report provided to the appellant’s legal advisors from Dr. Mason. 5. Consequent on the report of Dr. Mason, the appellant has obtained reports from other consultants which the appellant claims support the proposition that the respondent failed to identify that the CTG was recording the maternal heart rate rather than the foetal heart rate on 18th February 2013, thus failing to ensure appropriate CTG monitoring of the appellant during delivery. As a result, it is pleaded that the respondent failed to ensure earlier delivery and/or delivery between 30-60 minutes earlier than actual delivery and, in any event, delivery prior to the onset of terminal bradycardia. It is alleged that during this period of delay, the appellant was exposed to a prolonged period of repetitive cord compression leading to asphyxia which in turn caused the appellant neurodevelopmental delay and in particular his autism spectrum disorder. 6. It was also alleged in the proceedings (from the very outset) that the respondent further breached its duty of care to the appellant in failing to intubate him between 13:33pm and -4- 19:20pm on 18th February 2013, which breach of duty it is claimed has contributed to the appellant’s long term neurodevelopmental delay. 7. In an amended defence delivered on 7th June 2024, each and every allegation of negligence is denied. It is specifically pleaded that the CTG was recording the foetal heart rate and that the tracing was normal and reassuring at the relevant times, and that there was no indication to expedite delivery of the appellant any sooner than occurred. It is accepted that the appellant developed mild HIE, from which (it is pleaded) the appellant had recovered within 7-8 hours of birth, but it is denied that this was a result of any negligence on the part of the respondent. Moreover, it is denied that the appellant developed a moderate HIE. It is also denied that the mild HIE caused neuro developmental impairment or Autism Spectrum Disorder. 8. Although of no direct relevance to the application for a modular trial, it should be noted that the appellant’s medical condition was complicated by two other conditions, one being transposition of the great arteries, a congenital heart defect, and it is pleaded in the amended defence that the “detected low oxygen saturation was caused by the presence of a complex cyanotic congenital heart disease”. The appellant was successfully treated for this condition by way of a septostomy at Hospital Y, and no criticism is made of this treatment. 9. The appellant was also later diagnosed with craniosynostosis which required surgery when he was 11 months of age, but again there is no criticism made of this treatment. Motion to Try Certain Questions of Fact in a Modular Trial 10. On 20th September 2024, the respondent caused the issue of a motion pursuant to O. 36, r. 9(1) of the Rules of the Superior Courts seeking orders directing that the questions of fact set out above in para. 1 be tried before any other in a modular trial, namely: (1) Did the defendant fail to identify that the CTG was recording the maternal heart rate rather than the foetal heart rate on 18th February 2013; and -5- (2) Was the defendant in breach of duty by not intubating the plaintiff from 13:33pm on 18th February 2013? 11. A significant element of the dispute between the parties concerns the evidence that would be called on behalf of the appellant in the modular trial sought by the respondent. It is apparent that this surfaced as an issue immediately following upon the issue of the motion by the respondent. In general terms it may be said that the solicitor for the respondent, Mr. Padraic Brennan, in his affidavits expresses the view that in order to determine the first question in the motion, the Court will need to hear only expert obstetric evidence and evidence as to fact regarding events during labour. On the other hand, the solicitor for the appellant, Mr. Cian O’Carroll, expresses the view in his affidavit that the Court will in addition need to hear evidence as to causation from an “array” of experts in order to determine the motion. 12. The extent of the disagreement between the parties on this issue will become apparent from the summary of the affidavits below, as well as the summary of the judgment of the High Court and the submissions to this Court on appeal. However, it must be stressed that the High Court judge, in arriving at her conclusion to order the modular trial made no decision as to the relevance of the evidence of any witnesses and nor did she make any ruling as to the witnesses who may be called by either party in support of or in opposition to the motion. Accordingly, it follows that these matters do not fall for determination in this appeal. That said, they do have a relevance to the determination of the substantive issue in this appeal, which is whether or not the High Court judge erred in ordering a modular trial while these matters remain outstanding, and in that limited context I will engage, to the extent that it is necessary to do so, with the issues raised by the parties regarding the witnesses who may be called to give evidence if the modular trial proceeds. -6- 13. The respondent’s motion was grounded upon the affidavit of its solicitor, Mr. Brennan, sworn 19th September 2024. Mr. Brennan avers that the entire basis of the appellant’s allegations of breach of duty during labour are now (in light of the personal injuries summons) premised upon the alleged failure on the part of the respondent to identify that the CTG was recording the maternal heart rate rather than the foetal heart rate on 18 th February 2013. He asserts that if the court were to determine that the CTG was recording the foetal heart and not the maternal heart rate, then the appellant’s allegations of breach of duty during labour fail completely. Mr. Brennan avers that in order to determine whether, as a matter of fact, the CTG was recording the maternal heart rate rather than the foetal heart rate, as alleged, it will be necessary for the court to hear the appellant’s expert obstetric evidence and the respondent’s expert obstetric evidence, together with the respondent’s relevant witnesses as to fact, of whom three are identified, two being consultant obstetricians and gynaecologists, and one being a staff midwife. 14. As to the allegations of breach of duty during neonatal care, specifically in deciding not to intubate the appellant from 13:33pm on 18th February 2013, Mr. Brennan avers that in order to determine this issue, it will be necessary for the court to hear the appellant’s expert neonatal evidence, the respondent’s expert neonatal evidence, together with relevant witnesses as to fact of whom three are identified. 15. Mr. Brennan avers that the appellant has listed 16 witnesses and the respondent has listed 23 witnesses to be called to give evidence, and that if the case proceeds as a unitary trial, it will take in excess of 12 weeks, whereas if there is a modular trial of the obstetric and neonatal issues described above, it is likely to last of the order of four to five weeks. It should be noted at this juncture that during the course of the hearing of the motion in the High Court, counsel for the respondent revised these estimates, and also provided an estimate of the time likely to be required in the trial of issues in a third scenario, i.e. the likely duration -7- of a trial of all liability issues. Firstly, he estimated that the likely duration of a unitary trial would be of the order of 16 weeks. Secondly, he estimated that the trial of all issues pertaining to liability only in a conventional “split” trial would take of the order of 11 weeks. Thirdly, he estimated that the modular trial that the respondent seeks, confined to matters relating to the monitoring of the foetal and maternal heartbeats during labour, and the alleged need to intubate the appellant sooner, would take of the order of five weeks. Mr. Brennan avers that in the event that the case were to proceed as a unitary trial, it is likely that the court will have heard unnecessarily from approximately 25 witnesses with the resultant loss of court time and resources, as well as a significant increase in costs. He further avers that the allegations of breach of duty of care during labour and breaches of neonatal care can readily be determined in isolation and would be determinative of the entire proceedings. Furthermore, he claims that a modular trial of these issues will not prejudice the appellant. 16. An affidavit in reply to that of Mr. Brennan was sworn by the solicitor for the appellant, Mr. O’Carroll, on 8th October 2024. Mr. O’Carroll deposes that it became apparent at quite an early stage of life that the appellant’s development had been significantly delayed and a range of deficits were identified and discussed in the quantum reports prepared in these proceedings. The appellant has been diagnosed with autism spectrum disorder and presents with significant emotional and behavioural difficulties. He has impairment of vision and hearing and a slightly reduced range of movement due to a mild kyphosis of the spine. He has left foot drop and suffers from joint laxity and low muscle tone causing him pain in the morning. He has difficulties with balance, coordination, posture and walking pattern. Additionally, dietary, feeding and sleep issues have been identified. He requires a high level of support, supervision and assistance, including specialist assistance in the form of education, physiotherapy, speech and language therapy. -8- 17. Mr. O’Carroll acknowledges that the question as to whether or not the CTG was recording the maternal heart rate rather than the foetal heart rate on the date of the appellant’s birth is an important and significant issue, but he takes issue with the assertion that the issue can be determined by restricting the evidence that the appellant wishes to call to that of his obstetric expert alone, namely Dr. Mason. Mr. O’Carroll avers that the appellant’s case on this issue is supported not just by Dr. Mason, but also a Dr. Paul Howell, Consultant in Obstetric Anaesthesia regarding heart rates in labour, including the effect of epidural analgesia in labour. Mr. O’Carroll observes that the respondent has furnished a report from a Dr. Laurence Crowley, Consultant Anaesthesiologist which is inconsistent, so far as concerns maternal heart rates, with the evidence provided by the report of Professor Fergal Malone, the Consultant Obstetrician and Gynaecologist retained by the respondent. Accordingly, Mr. O’Carroll avers that this issue of fact cannot be decided by obstetric evidence alone, even based upon a consideration of the opinions of the respondent’s experts. 18. As to the second question concerning the alleged breach of duty by not intubating the plaintiff from 13:33pm on 18th February 2023, Mr. O’Carroll observes that it is not in dispute that the appellant had been extubated at or about 12:00pm noon and remained without intubation despite his ongoing respiratory distress, and was not reintubated until his arrival at the National Maternity Hospital (“NMH”) some six hours later. Mr. O’Carroll avers that by the time he arrived at the NMH, the appellant’s need for therapeutic cooling had not been effected, and he had been deprived of oxygen support by way of intubation during his transfer to the NMH, despite the same being available in the globetrotter incubator, and the appellant’s condition had deteriorated further such that he was reintubated on admission by the clinicians who assessed him in the NMH. Accordingly, Mr. O’Carroll avers, it is not correct to say that the respondent seeks to have two distinct issues of fact determined on a -9- preliminary basis, rather it seeks to have determined a mixture of specific fact and negligence related issues. 19. Mr. O’Carroll further avers that there are other “freestanding” allegations of negligence in relation to the failure to take and/or to record two cord blood samples at delivery, failure to record whether the single gas taken was venous or arterial and the failure to record meconium on the foetus at delivery. 20. Mr. O’Carroll relies upon the agreement on the part of the appellant to the respondent’s proposal that there should be a split trial as between liability and quantum, which had been agreed at the time of the adjournment in January 2024. He says that while it makes sense to separate the issues of liability and quantum, it is not possible to dispose fairly of the appellant’s claim by further refining the issues in the manner proposed by the respondent. In particular, he says that it is not possible to separate what happened in the course of the birth of the appellant from the evidence as to his poor condition in the hours and days which followed. He avers that the appellant’s hypoxic state at birth and thereafter is reflective of his foetal wellbeing in utero including his level of oxygen during the labour and his likely heart rate. He says that the appellant’s poor condition at his birth is evidence of his foetal distress in utero. He avers that it is not possible to look at the foetal heart rate purportedly recorded on the CTG in isolation and not look at the appellant’s condition at birth, for example, the fact that he was born with no heart rate and required chest compressions. Therefore, in determining whether or not the CTG was incorrectly recording the maternal heart rate, the court would have to hear not only from the appellant’s parents, but also from Dr. Mason, Dr. Howell and “an array” of causation experts, including experts in neonatology, neuroradiology and neuropsychology. Mr. O’Carroll describes the respondent’s claim that the issue could be determined without reference to causation witnesses as being both simplistic and very unfair to the appellant. - 10 - 21. By way of example, Mr. O’Carroll refers to a report from a Dr. Anne Hansen, Consultant Neonatologist, who opines that the HIE suffered by the appellant was as a result of the 30-60 minute delay in delivery identified by Dr. Mason. A further report provided by Dr. Kshitij Mankad, Consultant Paediatric Neuroradiologist who, referring to an MRI scan of the appellant’s brain taken on 22nd February 2013, opines that the “essential finding is subtle features of hypoxic ischaemic injury to the brain, and they are in sync with Professor Mason’s interpretation of perinatal distress to the baby”. 22. Mr. O’Carroll claims that the obstetric and neonatology issues are intertwined liability issues relevant to both breach of duty and causation. He says that the poor condition of the appellant at birth and in the neonatal period, the neuroradiology findings on his MRI, the neurological findings on his electroencephalogram (“EEG”), the seizure activity and his subsequent development are all relevant evidence regarding the prolonged period of bradycardia and foetal distress he suffered during the course of labour. Accordingly, the justice of the case requires that the appellant be permitted to call evidence on liability and causation without the unreasonable constraints proposed by the respondent. 23. Moreover, Mr. O’Carroll contends that the respondent has failed to demonstrate that even if the application is granted, there will be a significant saving of court time. He notes that the respondent is allowing for a total of 14 witnesses to give evidence, including six witnesses as to fact on its own side, but without indicating what other witnesses will be called. Furthermore, he says it is unclear whether the respondent has made any allowance for evidence of witnesses such as Drs. Hansen and Mankad. 24. In a replying affidavit sworn on 24th October 2024, Mr. Brennan avers that it is evident from the appellant’s application to amend his personal injuries summons that the viability of his claim turns on the new assertion that the respondent had failed to identify that the CTG was allegedly recording the maternal heart rate. Mr. Brennan avers that it is apparent from - 11 - Mr. O’Carroll’s affidavit that the appellant is conflating allegations of breach of duty with assertions of sequalae alleged to have been caused by the alleged breach of duty. He says that the court will only be required to consider and determine the issue of causation in the event that it determines that the respondent was in breach of duty as alleged. 25. In so far as the appellant relies on the reports of Drs. Hansen and Mankad, he notes that those reports rely, so far as obstetric care is concerned, upon the opinion expressed by Dr. Mason in his report, and that neither Dr. Hansen nor Dr. Mankad themselves assert any breach of duty in the respondent’s obstetric care of the appellant. 26. Mr. Brennan avers that if the appellant’s case that the CTG was recording the maternal heartrate is rejected, the foundation for the appellant’s contention that there was a negligent failure to deliver the appellant sooner falls away. Accordingly, only evidence material to whether the CTG was recording the maternal heart rate, instead of the foetal heart rate, will be relevant to the determination of the obstetric issue identified for modular trial, and the causation evidence alluded to by Mr. O’Carroll is not relevant thereto. 27. Mr. Brennan rejects the assertions of Mr. O’Carroll that, since the allegation of breach of duty in the neonatal period involves a mixture of specific fact and negligence related issues, that this is a reason to justify not having a modular trial on the issue. The modular trial may be tailored to address the issues in dispute, whether legal or factual. 28. So far as concerns Mr. O’Carroll’s argument about “freestanding” allegations of negligence, Mr. Brennan avers that each one of the allegations relied upon by Mr. O’Carroll pertain to matters of sampling and recording after the delivery of the appellant, and no case is made that the appellant’s injuries were the result of any of these allegations. Judgment of the High Court 29. In a judgment delivered on 5th March 2025, the High Court judge, having summarised the background to the application, considered the legal principles applicable to such - 12 - applications. She noted that it is common case that the court has jurisdiction to make an order of the kind sought and that, in addition to O. 36, r. 9(1) the court has an inherent jurisdiction to make an order directing a modular trial. She referred to a number of authorities including the judgment of Clarke J. (as he then was) in Cork Plastics (Manufacturing) v. Ineos Compound U.K. Limited [2008] IEHC 93, the judgment of Charleton J. (in the High Court), in McCann v. Desmond [2010] 4 I.R. 554 and the judgment of Clarke J. in the Supreme Court in Weavering Macro Fixed Income Fund Limited v. PNC Global Investment Servicing (Europe) Limited [2012] 4 I.R. 681. 30. The Judge noted that in Cork Plastics, Clarke J. stated that: “There can be little doubt but that the default position is that there should be a single trial of all issues at the same time.” Reynolds J. continued: - “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.” 31. The Judge also quoted the following passage from the judgment of Clarke J. in Weavering: - “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. Where 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 - 13 - 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.” 32. The Judge also quoted from the judgment of Charleton J. in McCann v. Desmond in which he referred to similar considerations as being relevant to such applications, and 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”. 33. The Judge then applied the foregoing legal principles to the facts of these proceedings. She noted that it is readily apparent that the breach of duty issues 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.” She observed that this had been acknowledged by Mr. O’Carroll in his affidavit grounding the application to amend the personal injuries summons wherein Mr. O’Carroll averred: - “…[T]he 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.” The Judge also quoted the following extract from the same affidavit: - “…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.” 34. The Judge proceeded to observe that it is readily apparent that if the court determines that it was the foetal heart rate that was being recorded then all allegations concerning the - 14 - alleged breach of duty during labour will fall away. In relation to the failure to intubate, the Judge held that that is an issue which will fall to be determined in accordance with the Dunne principles (referring to Dunne (an inf.) v. National Maternity Hospital [1989] I.R. 91) regarding the decisions made in that regard. 35. The Judge formed the view that while Mr. O’Carroll asserted that there are a series of causation experts who can “give vital insights into the causes and evolution of the minor Plaintiff’s brain injury”, he had failed to identify any material facts which would be elicited from such evidence or how such evidence is germane to the issues proposed for a modular trial. In relation to the “freestanding” allegations of negligence, the Judge held that no case had been advanced that the appellant’s injuries were the result of any one or all of those allegations. 36. In her conclusion, the Judge stated that, after further engagement between the parties, it was common case that a unitary trial of considerable complexity would take of the order of 16 weeks. The respondent submitted that the modular trial which it seeks would conclude within a period of four to five weeks, but the appellant argued that it would take longer if more evidence than that envisaged by the respondent would be given on behalf of the appellant. 37. The Judge concluded that it is “irrefutable” that there would be a clear saving in court time and costs if a modular trial of the type sought were to be directed. She concluded that the issues identified by the respondent are discrete issues which are “capable of being determined independently of the balance of the trial”, quoting from the judgment of Quinn Michael J. in Biomass Heating Solutions Limited v. Geurts International BV [2023] IEHC 66 (para. 85). The Judge expressly rejected the submission that the proposed modular trial would be in any way prejudicial to the interests of the appellant, but at the same time observed that if she were wrong in that respect, the court hearing the modular trial retained - 15 - a discretion to act “in an appropriate way” to ensure that no injustice is caused to the parties, as per Clarke J. in Weavering. Grounds of Appeal 38. In his grounds of appeal filed on 4th April 2025, the appellant raises nine grounds of appeal. These may be summarised as follows: (1) The Judge erred in determining that the appellant had failed to demonstrate that any real prejudice would accrue to him as a consequence of the direction for the modular trial. (2) The Judge failed to appreciate that excluding all evidence pertaining to the aetiology of the appellant’s injuries from the initial module is prejudicial to the appellant and inimical to the proper determination of the primary factual liability issues arising. (3) The Judge erred in failing to appreciate that in a case of this kind, issues of causation are immediately material to and inextricably linked to proper determination of the primary factual liability issues arising. (4) The Judge erred in determining that the solicitor for the appellant had not, in his replying affidavit, identified any material facts which will be elicited from the evidence of the causation experts intended to be called by the appellant. (5) The Judge further erred in failing to address adequately or at all the case advanced on behalf of the appellant on affidavit and in oral and written submissions to the effect that issues of breach of duty and causation are intertwined in the proceedings. In this regard, the Judge failed to have regard to an important aspect of the applicable legal principles referred to by Clarke J. in Weavering which requires that a court when directing a modular trial must take significant care “to ensure that there are unlikely to be significant links between - 16 - the issues which might arise in respect of other aspects of the liability question such as would render it unfair and/or inefficient to separate out the liability issues in the manner under consideration.” (6) The Judge erred in placing disproportionate significance upon the alleged saving of court time that she considered would accrue in directing a modular trial, and in particular the Judge erred in failing to consider the saving of court time that would be achieved by proceeding with a modular trial on the issues directed, as compared to a split trial of the liability and quantum issues as had been agreed between the parties. 39. In its respondent’s notice delivered on 25th April 2025, the respondent contends that there was no error on the part of the High Court judge. The respondent contends that causation of the appellant’s injuries should not be considered until breach of duty has been determined. The respondent contends that allegations of breach of duty will be determined following the hearing of evidence pertaining to the two issues to be tried in the module directed, and that a failure by the appellant to prove that the respondent was in breach of duty will obviate the need to consider evidence beyond those two issues. 40. Further, the respondent claims that the appellant has failed to demonstrate any prejudice to the appellant in the determination of those issues by way of modular trial. 41. The respondent contends that the Judge, as the trial judge to whom the trial was assigned and who had heard the appellant’s application on the trial date for adjournment in light of the new evidence relied upon by the appellant, and who had heard and determined the appellant’s application for liberty to amend the personal injuries summons at all times retained a discretion to regulate the manner in which the appellant’s claim is to be conducted, including the modular trial of the issues identified. - 17 - 42. The respondent pleads that the Judge canvassed the views of the parties as to the potential saving of time if a modular trial were to be directed, and the appellant did not dispute that there would be a saving of time if the Court so ordered. So, therefore, it is said that the Judge correctly concluded that there would be a saving of time and costs if a modular trial is directed. Submissions of the Parties 43. The appellant’s central contention is that it would be unsafe for a court to arrive at a decision on the question of CTG monitoring without at the same time determining the issue of causation because, in the submission of the appellant, the issues of breach of duty and causation are intertwined in these proceedings. The appellant also contends that the High Court judge failed to address the detailed oral and written submissions advanced by the appellant in support of that proposition. 44. It is the appellant’s case that the medical conditions from which he now suffers were caused by the failure on the part of the respondent to monitor the appellant properly during labour with the result that the appellant suffered a prolonged period of foetal distress caused by cord compression, which in turn resulted in foetal bradycardia and which ultimately, on the appellant’s case, caused him to suffer a moderate hypoxic ischaemic encephalopathy (“HIE”). On the appellant’s case, this sequence of events would have been avoided if the respondent had been monitoring properly the foetal heart rate, because the respondent would have observed the foetal distress and caused the delivery of the appellant by way of caesarean section approximately 30 to 60 minutes sooner than he was in fact delivered. 45. The appellant contends that in considering whether or not the respondent was monitoring the foetal heart rate, matters relating to causation are relevant because if a court were to conclude that there was a prolonged period of foetal distress, that would completely undermine the opinion of Professor Malone relied upon by the respondent to the effect that - 18 - there had been a normal CTG trace up to 10:38am on the date of delivery, because the CTG trace could only have been normal at that point if it were in fact measuring the maternal heart rate; if it had been measuring the foetal heart rate then it would be expected to show an abnormal trace in circumstances where there was foetal distress ongoing for a prolonged period (assuming the court reached the latter conclusion). In its defence, the respondent has denied that there was any indication to expedite delivery of the appellant between 30 and 60 minutes prior to his delivery. 46. The appellant submits that the core allegation of breach of duty during labour is that there was a failure to detect foetal bradycardia for a prolonged period, whereas the respondent contends that at 10:40am there was some acute event giving rise to the bradycardia, but that since the appellant was delivered within 30 minutes of that event, there was no breach of duty on its part. The appellant submits that it is because of this disagreement that the whole body of evidence as to the poor condition of the appellant at birth is relevant in the court’s consideration of the monitoring issue. The appellant further submits that for the same reason, the degree of HIE that he suffered at birth is relevant, because he contends that he suffered a moderate HIE causing him to suffer lifelong disability, while the respondent contends that he suffered a mild HIE from which he fully recovered within eight hours of delivery. 47. The appellant submits that the dispute concerning the seriousness of the HIE that he suffered is relevant both to the issue of CTG monitoring and causation, and that the High Court judge erred in failing to address these matters adequately, or at all. In the High Court, counsel had submitted that any evidence consistent with a prolonged foetal distress is relevant to the issue of foetal monitoring, and that it is for this reason the appellant’s poor condition at birth is relevant. He referred the High Court judge in this regard to the evidence of Dr. Howell and also the evidence of Dr. Mankad. In effect, the submission of counsel in - 19 - the High Court was that the more serious the HIE suffered by the appellant, the more likely it is that he suffered a prolonged period of foetal distress, which would suggest on the balance of probabilities that the foetal heart rate was not being monitored. Counsel submitted to the High Court judge that the respondent had not put forward any evidence to the effect that the nature and severity of the HIE is unconnected to the duration of the foetal distress. The appellant contends that in failing to do so, the respondent has failed to discharge the onus that is on it to satisfy the court that the appellant will not be prejudiced if the application for a modular trial is granted. 48. It was further submitted that in ordinary circumstances at trial, a plaintiff would seek to prove that the injury suffered is consistent with and arises from the wrong alleged in the proceedings. In these proceedings, the respondent seeks to “cut the legs” from under the second part of the appellant’s intended evidence by seeking to persuade the court not to consider whether the appellant suffered a moderate HIE, and whether his present condition is attributable to the same. It is said that the respondent would have the court determine all issues in respect of the factual matrix without reference to any events subsequent to the moment of delivery of the appellant. 49. Counsel further submitted that none of the authorities in relation to applications such as this contemplate a dispute between the parties as to what evidence might be called. There is a significant dispute in this regard in this instance, with the respondent making it clear that it will oppose any evidence being given by any expert witness other than Dr. Mason and Dr. Howell. However, if at the hearing of the motion the court were to agree with the appellant that it is necessary to hear other witnesses whose evidence is relevant to the issue of causation, such as Dr. Mankad and Dr. Hansen, then the time saved in comparison with a full trial on the issue of liability only will be less, with correspondently less benefit in proceeding by way of modular trial. - 20 - 50. Insofar as the respondent relies on what was described as the “safety net” referred to by Clarke J. in Weavering (wherein Clarke J. stated that “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”) counsel for the appellant submitted that the difficulties have been identified now, and if the Court considers that, in spite of the objections of the appellant, the matter should proceed to a modular trial, then the issue of the so called safety net will offer no comfort to the appellant. 51. The submissions made by the appellant in relation to the second issue were considerably more brief. In his written submissions, counsel acknowledged that the issue of prejudice to the appellant under this heading had been ameliorated by the acceptance on behalf of the respondent that the appellant’s neonatology experts could give evidence in respect of this issue. 52. Nonetheless, there remains the difficulty that the respondent is intending to oppose the giving of evidence concerning whether or not the appellant suffered a moderate HIE. The appellant queries how the court can make an assessment of the allegation of failure to intubate without entering upon a consideration of the seriousness of the HIE suffered by the appellant. 53. Finally, the appellant submitted that the High Court judge placed undue weight on the possible saving of court time which should not be in any way conclusive in determining whether or not a modular trial should be directed. Furthermore, the appellant claims that the analysis of the High Court judge as to the saving of court time was inaccurate. Counsel for the appellant referred to para. 30 of the High Court judgment in which the judge stated: “Both parties acknowledge that a unitary trial would be both lengthy and complex. - 21 - Inevitably, a modular trial would generate efficient use of time and resources”. However, the Judge should not have engaged in a comparison between a unitary trial and a modular trial, as the former was never in issue. The issue was whether a modular trial would be more efficient than a trial on the liability issue only, and the extent of the potential saving of court time should have been assessed in that context. Submissions of the Respondent 54. In the submission of the respondent, the modular trial directed by the High Court judge relates to issues that are clearly capable of being determined independently of the balance of the trial, and could result in significant savings of court time, in particular if these issues are determined in favour of the respondent. If not, the court will simply proceed to consider the issues of causation and, if necessary, quantum. There is therefore no prejudice to the appellant in adopting such an approach. 55. The respondent placed reliance upon the decision of Quinn Michael J. in Biomass Heating Solutions Limited v. Geurts International (“Biomass”) in which, following a review of the authorities, Quinn J. summarised the principles applicable to such applications. Having noted that the default position is that the court should conduct a unitary trial, and that the onus is on the moving party to satisfy the court that the interests of the administration of justice are served by directing a modular trial, Quinn J. continued, at paras. 85-87: - “85. Fourthly, if the matter is capable of being disposed of by separate modules, and if a module can be identified which is capable of being determined independently of the balance of the trial, the court must consider whether directing such a module to be heard separately will or may generate efficiencies and benefits in terms of the saving of court time and expense and other benefits such as the facility for the parties and the court to focus on discrete issues in each module. - 22 - 86. Fifthly, if such benefits are discernible the court needs to consider whether they are of sufficient weight as to justify departure from the default position of a unitary trial. This is a balancing exercise. 87. Sixthly, in exercising the court's discretion, it should take account of such factors as :- (a) This history of the case, including the pace at which it has moved this far. (b) Delay in bringing the application or any other delay considerations in the context of the proceedings as a whole; (c) Prejudice to a party pressing for a unitary trial; (d) Whether the application has truly been brought in the interests of saving court time and cost and expense or for some other purpose such as the strategic interests of the applicant.” 56. In this instance the respondent submits that a modular trial will “generate efficiencies and benefits in terms of the saving of court time” in the context of the reduced number of witnesses required and in the context of the additional costs that both parties would have to incur unnecessarily in a unitary trial as well as “other benefits” such as obviating the need to call expert witnesses – who are practicing clinicians – to give evidence of causation and quantum. 57. The respondent also submits that the history of this case is relevant. The respondent had incurred the full cost of a trial when the appellant sought (and was granted) an adjournment so as to amend his pleadings. This had resulted in a new and entirely different claim. As a result, it is submitted, the respondent is now faced with the prospect of incurring the costs of a second trial through no fault of its own. Therefore, it was fair, just and reasonable for the court to make an order that has the potential to keep those additional costs to a minimum. - 23 - 58. The respondent rejected the submission of the appellant that the High Court judge failed to address the appellant’s arguments. The respondent submits that it is clear from the transcript of the proceedings in the High Court that the Judge did engage with the pleadings filed and the arguments and submissions made on behalf of the appellant, to the extent that was necessary for a High Court judge in the hearing of such an application. In this regard, the respondent refers to and relies upon para. 31 of the judgment of the High Court in which the High Court judge stated as follows: - “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 connected as alleged.” 59. Moreover, the respondent submits that the Judge was entitled to have regard to the concept of a “safety net” as articulated by Clarke J. (as he then was) in Weavering. The Judge made the decision to direct a modular trial having regard to the applicable legal principles which afford a trial judge the discretion to act “in an appropriate way” so as to ensure that no injustice is caused to the parties. 60. In the submission of the respondent, the appellant in his submissions has conflated allegations of breach of duty and allegations of causation. The allegation that the maternal heart rate was being negligently misread as a foetal heart rate falls to be determined by reference to the circumstances pertaining at the time of reading the CTG and not by reference to matters arsing thereafter. Similarly, whether the outcome to the plaintiff of an alleged failure to monitor the foetal heart rate was mild or moderate HIE is irrelevant to the determination of whether it was the foetal or maternal heart rate that was being monitored. The respondent submits that the allegation of a failure to record the foetal heart rate can be - 24 - determined in isolation of and without the necessity of having to embark upon a determination of the causation of the injuries that the appellant alleges he sustained. 61. The respondent refers to para. 31 of the affidavit of Mr. O’Carroll in which he avers that in order to determine whether the CTG was incorrectly recording the maternal heart rate rather than the foetal heart rate, the court would have to hear from an array of causation experts on the plaintiff’s side, such as neonatology, neuroradiology and neuropsychology all of whom give vital insights into the causes and evolution of the minor plaintiff’s brain injury. However, the respondent makes the point that the both the appellant’s written and oral submissions are silent as to any material fact proposed to be given by the respondent’s experts on causation that goes to the issue of whether the CTG was or was not recording the maternal heart rate, as alleged. It was therefore unsurprising that the High Court judge held that the appellant had failed to demonstrate any prejudice. 62. The respondent submits that the reliance placed by the appellant on the reports of Dr. Hansen and Dr. Mankad is misplaced. So far as concerns the evidence of Dr. Hansen, the respondent says that based on her report, her evidence will pertain to injuries alleged to have been caused by an alleged failure to deliver the plaintiff 30-60 minutes earlier, and not to the identification of any want of care for which the appellant contends in that regard. 63. So far as concerns the report of Dr. Mankad, while the appellant relies upon his opinion that “the subtle features of hypoxic ischaemic injury to the brain, and they are in sync with Professor Mason’s interpretation of perinatal distress to the baby”, it appears from his report and the addendum thereto that his evidence will pertain to the allegation that the injuries were caused, rather than to the assertion that they were caused by any want of care. However, the respondent submits that Dr. Mankad’s report and addendum thereto are silent on any breach of duty on the part of the respondent. - 25 - 64. The respondent submits that the appellant alleges that the respondent failed to monitor and respond to the appellant’s bradycardia by reason of the respondent’s alleged failure to discern that the CTG was recording the maternal heart rate rather that the foetal heart rate. It follows therefore that if the appellant’s claim that the CTG was recording the maternal heart rate is rejected, the foundation for the appellant’s contention that there was a negligent failure to deliver the appellant sooner falls away. 65. For these reasons, the respondent contends that only evidence material to whether or not the CTG was recording the maternal heart rate instead of the foetal heart rate will be relevant to the determination of the obstetric issue identified for modular trial and the causation evidence alluded to by Mr. O’Carroll and in the submissions of the respondent is not relevant thereto. 66. Insofar as the appellant relies upon the evidence of Dr. Hansen that the HIE suffered by the appellant was moderate rather than mild HIE, the respondent submits that Dr. Hansen’s evidence is not inconsistent with the respondent’s case that the foetal bradycardia occurring within the last half hour before delivery; all that Dr. Hansen says is that it is consistent with Dr. Mason’s hypothesis. Furthermore, it is submitted, it is the obstetricians’ job to read and discern the CTG and to decide at what stage intervention may or may not be required. This is not a matter for a neonatologist. 67. Counsel for the respondent submitted that, contrary to the submission of the appellant, if, during the course of the hearing evidence emerges from the witnesses who the respondent has submitted are the appropriate witnesses for the modular hearing, that causes the Judge concern that a wider exploration of the causation issue is required, then it is open to the Judge to take whatever course that she considers necessary in those circumstances to address that concern, and the Judge has made it clear that she will do so if that should arise. This, it is - 26 - submitted, is adequate to safeguard the appellant against the concerns expressed in the course of the hearing of this application. 68. So far as the allegation of failure to intubate is concerned, the respondent submits that the entire basis of the appellant’s allegations of breach of neonatal care is premised upon the alleged failure to intubate the plaintiff from 13:33pm on 18th February 2013 when his CO2 was recorded at 10.9 kPa, which is approximately six hours before he was intubated. This issue falls to be determined by reference to the Dunne principles, as to what was known at the time the decision was made by the pediatrician not to intubate. If there is a determination that the respondent was not in breach of duty in deciding not to intubate from 13:33pm, then the appellant’s allegations of breach of neonatal care fail completely. Discussion 69. At the outset, I should address the standard of review. There was no disagreement between the parties as to the relevant authorities and counsel for the appellant relied upon the judgments of Collins J. in Betty Martin Financial Services Ltd v. EBS DAC [2019] IECA 327 and Cave Projects Ltd v. Peter Gilhooley and others [2022] IECA 245. At paras. 39 and 40 of Betty Martin, Collins J. said: - “39. Accordingly, while as a matter of principle, “great weight” is to be given to the views of the High Court Judge, the ultimate decision on this appeal is for this Court. It is also clear that the EBS is not required to establish any error of principle as a pre- requisite to this Court coming to a different conclusion to the Judge. 40. …Where the High Court does not explain its basis for taking a particular view on a contested issue and/or fails to engage appropriately with the arguments made to the Court by one or other party on that issue, that will necessarily affect the weight to be attached to the Court’s view on appeal. … .” - 27 - In the same vein, in Cave, Collins J. stated at para. 34 that “Errors of assessment may justify appellate intervention, even in the absence of any error of principle by the High Court.” 70. In this case, it is the appellant’s contention that the High Court judge made both errors of assessment and an error of principle, such as to justify the intervention of this court. As a matter of principle, it is contended that the High Court judge erred in failing to consider the arguments advanced by the appellant in the High Court in relation to the link between causation and breach of duty, and, insofar as she did consider these matters, it is contended that the judge erred in her assessment of the same. 71. In the context of an appeal from an order for discovery, in Tobin v. Minister for Defence [2019] IESC 57, [2020] 1 I.R. 211, Clarke C.J. said, at para. 59 of the reported judgment: - “As the application of the above principles is one for judges dealing with the preparation of cases and since issues as to relevance, necessity and proportionality involve an adjudication based on a detailed understanding of the case, in general, decisions as to discovery should involve a significant measure of appreciation by any appellate court reviewing a decision at first instance. Where litigation is under case management by a judge with an intimate knowledge of the issues involved, those considerations heighten. In any event, where an order made on a consideration of affidavit evidence and pleadings is appealed, the burden of demonstrating as a probability that the decision made is wrong rests on the appellant from the original High Court order; see Ryanair Limited v Billigfleuge.de GmbH [2015] IESC 11 at paras. 5-8.” 72. In the context of an appeal from an order directing a modular trial, Clarke J. had the following to say in Weavering, at paras. 21 and 22 as to the standard of review on appeal: - - 28 - “[21] In substance it is clear, therefore, that this court should be very slow to interfere with case management directions and that the test for the exercise by this court of its appellate role is as set out in Dowling v. Minister for Finance [2012] IESC 32, (Unreported, Supreme Court, 24th May, 2012). However, P.J. Carroll & Co. Ltd. v. Minister for Health and Children [2005] IESC 26, [2005] 1 I.R. 294 is, as was pointed out in Dowling v. Minister for Finance [2012] IESC 32, an example of a case where this court was prepared, notwithstanding the general reluctance which properly applies in such cases, to allow an appeal. It is, perhaps, of some importance to note that what was in issue in that case was a highly significant decision which had the effect of, in substance, excluding the State defendants in that case from leading expert evidence. There can be little doubt but that the far reaching nature of the order under appeal in that case was a significant factor in the court deciding to consider interfering with the decision of the High Court. It follows that one of the factors that this court ought properly take into account in deciding whether to review the discretion exercised by a judge of the High Court in a case management process is the extent to which the order under appeal might be said to have a potentially fundamental impact on the proceedings. [22] The range of orders which can be made in a case management process varies significantly. Orders can, at one end of the spectrum, involve the imposition of time limits for taking steps, or purely procedural directions as to how a trial is to be conducted. At the other end of the spectrum there can be decisions which have the potential to have a very significant impact on how litigation is to progress. There will, of course, be many types of orders which fall somewhere between those two extremes. Following on from the principles identified in Dowling v. Minister for Finance [2012] IESC 32, (Unreported, Supreme Court, 24th May, 2012) it seems to me that it is - 29 - unlikely that this court would consider it appropriate to interfere save in cases which are at the end of the spectrum where the consequences of the case management order under appeal have the potential to significantly affect the litigation. It is difficult to see how, except in very unusual circumstances, case management orders which did not have consequences of such a nature could be said to be irremediable.” 73. Later on in his judgment, in the course of summarising the principles which he derived from a detailed consideration of relevant authorities, Clarke J., stated (in a passage upon which the High Court judge placed some reliance) at para. 29(ii): - “…What is, however, clear from all of the authorities is that the trial of an issue, formally separated out as a preliminary issue in the sense in which that term is used in the Rules, is a practice which is to be adopted with great care by virtue of the experience of the courts that “the longest round is often the shortest way home”. Where issues, such as the question of liability and/or causation, are tried first in a modular trial then the court is simply hearing all matters relevant to those issues, be it fact or law, and coming first to a conclusion on those issues. It is, of course, the case that if, while hearing such a module, the court comes to the view that it cannot 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 can act in an appropriate way to ensure that no injustice is caused.” 74. It is thus clear from Weavering that while this Court may interfere with an order directing a modular trial made by the High Court, it should be very slow to do so unless the order made has the potential to affect the litigation in “a significant way”. It is also clear, as the High Court judge said, that the court hearing a modular trial can take appropriate measures if in the course of hearing such a module it becomes concerned that it cannot safely - 30 - reach a conclusion without also entering into evidence and legal argument relevant to some issue originally intended to be tried at a later stage. 75. As to the principles applicable to an application for a modular trial, these have been discussed in numerous authorities, and there is no disagreement between the parties about them. In Weavering, Clarke J. cited with approval the approach to such applications as articulated by Charleton J. in McCann v. Desmond, in which Charleton J. suggested that the court should approach the application through the prism of the following four questions: - “(1) Are the issues to be tried by way of a preliminary module, readily capable of determination in isolation from the other issues in dispute between the parties? A modular trial should not be made if the case could be characterised as an organic whole, the taking out from which of a series of issues would tear the fabric of what the parties need to litigate, so that the case of either of the plaintiff or the defendant will be damaged through being seen in the isolated context of a hearing on a number of limited issues; (2) Has a clear saving in the time of the court and the costs that the parties might have to bear been identified? The court should not readily embark upon a modular hearing simply because of a contention that a saving in time and costs has been identified, but rather it should view that factor in the context of the need to administer justice in the entire circumstances of the case. (3) Would a modular order result in any prejudice to the parties? If, for instance, the issue as to what damage was occasioned by reason of the wrong alleged by the plaintiff was so intricately woven in to the proofs that were necessary to the proof of liability for the wrong, so that the removal of the issue of damages would undermine the strength of the plaintiff’s case, or the response which a defendant might make to it, then the order should not be made. - 31 - (4) Is a motion a device to suit the moving party or does it genuinely assist the litigation by being of help to the resolution of the issues? I return to the idea that a judge should always be aware that tactical decisions are made, often out of an abundance of enthusiasm, by parties to litigation, who may seek to put the other party at a disadvantage through the obtaining of an order under the Rules of the Superior Courts 1986, or one capable of being made within the inherent jurisdiction of the court. Obvious examples are pre-trial motions that may merely be tactical are motions to strike out proceedings as being vexatious or frivolous or to seek an order for security for costs… .” I will address these questions in due course. 76. In the course of exchanges with the Court, counsel for the appellant fairly accepted that the appellant’s case, so far as concerns breach of duty during labour, falls away if the appellant cannot satisfy the Court that the respondent was erroneously monitoring the maternal heart rate rather than the foetal heart rate. So, there is no dispute between the parties as to the centrality of that issue in the proceedings, and the current dispute revolves around whether or not it can be determined as a discrete issue without the Court receiving and considering evidence as to causation. If, as the appellant contends, the latter is necessary, this would have the effect of significantly expanding the evidence that the respondent contends that the Court needs to hear to determine the issue, and would reduce significantly the benefits of addressing the issue by way of a modular hearing. 77. In opposing the application in the High Court, the appellant did so on the basis that in cases such as these the issues of negligence and causation tend to be intertwined, and it can be difficult for a court on a motion, without hearing expert evidence, to decide where the line is to be drawn in terms of evidence. It was said that the Court would need to have a high degree of confidence that the appellant has no other relevant evidence to call beyond - 32 - what the respondent has submitted is relevant. The point was made that if witnesses as to causation have relevant evidence to give – as the appellant submits is the case here – then the benefit of separating out the issues to be decided on a modular basis from liability generally is “much eroded”. 78. The allegation that the respondent, during the course of labour, was erroneously monitoring the maternal heart rate rather than the foetal heart rate is founded on the report of Dr. Mason of 4th February 2024, and it led to the appellant fundamentally altering the case that he had made up to that point in time. This report runs to 47 pages and 88 paragraphs. The CTG analysis is the largest section in the report, and is to be found in paras. 29-56 of the report. Dr. Mason then proceeds to consider the appellant’s condition at birth, and what would the appellant’s pH have been at delivery if there had been an acute foetal bradycardia commencing at 10:43am, as the respondent contends occurred. He found that the pH and base excess could “in theory” fit with the concept of an acute event occurring at 10:43am. However, he said, there is no evidence of such an event. He concluded the pH and bases excess readings were not compatible with the CTG. 79. Since his analysis was not supporting an acute event at 10:43am, he began a search for another plausible explanation for the appellant’s condition at birth. He found what he considered must be mistakes in the recording of the maternal heart rate during labour. He then proceeded to refer to a warning issued by the Medical Device Agency in 2002 that a CTG could record a maternal rather than a foetal pulse, and he said that this is now well recognised and for this reason it is mandatory to check the maternal pulse rate against the signal recorded. 80. Dr. Mason proceeded to consider specifically what evidence there is to suggest that the recording on 18th February 2013 was a maternal rather than a foetal trace. He also gave consideration to the most probable cause of the appellant’s condition at birth. He said that - 33 - on the balance of probabilities it was secondary to cord compression most likely due to the cord around the neck. He said that cord compression can result in a slow but persistent fall in pH, and this will be reflected in a foetal trace by decelerations which would increase in amplitude and duration and with time would lead to a terminal foetal bradycardia. In Dr. Mason’s opinion, with appropriate monitoring this would have been recognised much earlier in labour, and would have led to the appellant being born perhaps 30-60 minutes earlier. He would therefore have been born in significantly better condition and would have avoided the need for cooling and any long-term damage which resulted from HIE. 81. As I have already said, this is the basis upon which the appellant was permitted to amend his personal injuries summons, and of course Dr. Mason will be a key witness if not the key witness on behalf of the appellant in the event that the modular trial proceeds. It should be made clear at this point that the respondent’s witness on these matters, namely Professor Fergal Malone, Consultant Obstetrician and Gynaecologist, in a report dated 25th March 2024 firmly rebuts Dr. Mason’s hypothesis in every material respect. 82. However, the appellant maintains that he should not be confined to the evidence of Dr. Mason (and Dr. Howell, who the respondent agrees also has relevant evidence to give). Having obtained the report of Dr. Mason, the appellant set about obtaining further opinions from other experts, and particular reliance is placed upon the reports obtained from Dr. Hansen, a consultant neonatologist based in Boston, and Dr. Mankad a Consultant Paediatric Neuroradiologist based in Great Ormond St. Hospital, London, but other reports were also obtained. The reports of Drs. Hansen and Mankad do not address the CTG trace or the other evidence regarding the monitoring of the foetal and pulses. 83. Dr. Hansen’s report is focused upon the condition of the appellant at birth. She concludes that, given the lack of a genetic explanation for his neurodevelopmental outcome, on the balance of probabilities the appellant “suffered moderate HIE “as a result of the 30- - 34 - 60 minute delay in delivery identified by Dr Mason.” To that extent her opinion appears to be predicated upon Dr. Mason’s conclusion that it was the maternal heart rate was being monitored and not the foetal heart rate. However, Dr. Hansen also says that the diagnosis of moderate to severe HIE is based on two criteria, the first being “evidence of fetal or neonatal distress as evidenced by a history of acute perinatal event or pH < 7.0/base deficit >”, and other indicators, and secondly evidence of moderate to severe neonatal encephalopathy by exam and/or EEG. 84. In his report of 1st April 2024, Dr. Mankad, Consultant Paediatric Neuroradiologist, was asked, by the solicitors for the appellant, to address a number of very specific questions, the first of which was: - “Having regard to the opinion of Professor Mason wherein he expressed the view that [the appellant] ought to have been delivered 30-60 minutes earlier, can you please describe the abnormalities that you observe on the imaging to offer your opinion on the likely timing/causation of these findings, bearing in mind [the appellant’s] presentation at delivery and in the neonatal period.” Dr. Mankad replied: - “To respond to this question, I have reviewed all the imaging available on [the appellant] and have summarised them in a PowerPoint presentation to explain the findings. This is attached to this report. The essential finding is subtle features of hypoxic ischaemic injury to the brain, and they are is (sic) in sync with Professor Mason’s interpretation of perinatal distress to the baby. The patterns of injury to the brain in the context of hypoxic ischaemic injury are often overlapping and not exclusive in any respect. A lot depends on the duration and severity of oxygen deprivation, its severity, and the maturity of the brain at the time of the insult.” - 35 - 85. Counsel for the appellant submits that any evidence that supports the proposition that there was a prolonged period of foetal distress is relevant because such evidence will support Dr. Mason’s opinion that the CTG was not capturing or monitoring the foetal heart rate. For that reason, it was submitted that the whole body of evidence as to the appellant’s poor condition at birth is relevant and counsel submitted that it is not apparent from the judgment of the High Court why the Judge concluded that these matters are not relevant, and it is said that the Judge failed to engage with the detailed arguments that were made in this regard. Counsel submitted that this amounts to an error of law that requires the intervention of this court. 86. There is some validity in the appellant’s criticism of the Judge’s somewhat perfunctory consideration of the issue, which does not specifically address submissions made by counsel or the medical evidence placed before the court. However, what the Judge did say was that Mr. O’Carroll, in his affidavit sworn in opposition to the application, had not identified any material facts which might be elicited from the evidence of the causation experts that is germane to the issues proposed for a modular trial. Counsel for the appellant submitted that Mr. O’Carroll expressly identified such matters at para. 33 of his replying affidavit where he referred to the evidence of Drs. Hansen and Mankad which I have summarised above. While this evidence does provide support for the hypothesis that the appellant suffered a moderate HIE at birth, which would be consistent with Dr. Mason’s hypothesis that it was the maternal heart rate was being monitored, rather than the foetal heart rate, it does not specifically address the issues of CTG monitoring and intubation, and it appears to me that that was the point being made by the Judge. 87. The respondent accepts that if a modular trial is directed, then, on the appellant’s side, evidence from Dr. Mason and Dr. Howell (the anaesthetist retained on behalf of the appellant) is relevant to the determination of the CTG issue. However, while agreeing that - 36 - the appellant’s parents may be called as witnesses to fact, the respondent has made it clear that in its view no expert witnesses on the appellant’s side, other than Drs. Mason and Howell, are relevant or necessary to the determination of this issue. Therefore, if a modular trial is ordered, the respondent will be objecting to any evidence being given by any other expert witnesses on behalf of the appellant. As I have said earlier, the Judge has not made any ruling yet as to the relevance or necessity for of any particular strand of evidence, and this is not an issue for adjudication in this appeal. 88. The hearing of this motion in the Court below went into a second day so that the parties could address the Judge in a considered way as to the likely duration of the various trial options being: (1) a modular trial (2) a “split” trial in which all issues of breach of duty and causation would be addressed and determined, proceeding to quantum only if necessary, and (3) a unitary trial of liability and quantum. While acknowledging that this is not an exact science, the Judge wanted the parties to provide as accurate an appraisal as possible of the time that such trials would take for the obvious reason that she needed this information to form a view as to the likely saving of time that might be facilitated by a modular trial. In the course of exchanges with counsel, the Judge said that she envisaged that if a modular trial proceeds, the parties would make submissions as to what evidence is necessary for the purpose of the trial of the issues identified by the respondent. 89. However, counsel for the appellant submitted to the High Court judge and again in this Court that this is an unusual situation to arise in an application such as this and that it is apparent as of now that if the modular trial proceeds, there will be a significant dispute between the parties on this issue which in turn will take time to resolve thereby diluting the efficiency that is the driving force behind the modular trial. He further submitted that the Court should be able, with a degree of confidence, to make an assessment at the application stage as to the evidence that would be relevant to the issue proposed for disposal by way of - 37 - modular trial. He also submitted that if the Court agrees to hear witnesses as to causation, as he submits is necessary, that will further diminish the savings of time relied upon by the respondent, by narrowing the gap in time taken to hear and determine the modular trial on the one hand and a hearing limited to liability only on the other. 90. Counsel for the appellant submitted to the Judge that, having given careful consideration to the matter, he was of the opinion that a full trial of the liability issues, dealing with breach of duty and causation together, would take of the order of six to eight weeks. This, it may be noted, is a significantly lesser period than that estimated by counsel for the respondent for the trial of the same issues, which it will be recalled he estimated as being likely to require of the order of 11 weeks. Counsel for the appellant did accept that if there is a more limited trial of issues as sought by the respondent, there would be some saving of time on his estimate, but not a significant amount and not so much as to justify the separating out of issues. That limited concession appears to have been made on the assumption that the appellant would be permitted to adduce all the evidence that he considers necessary to meet the application. 91. In giving her judgment on the application the High Court judge stated simply that 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”. She formed this view on the basis of the respondent’s estimate that a modular trial would take four or five weeks, while at the same time being aware that, before or during the hearing of the modular trial she is likely to be required to rule upon a disagreement between the parties as to the relevance of evidence that the appellant wishes to call in connection with the CTG issue in particular. Moreover, in reaching her conclusion it is clear that, as the appellant submitted, the Judge compared the respondent’s estimate for the length of time that a modular trial would take (five weeks) with - 38 - the respondent’s estimate for a unitary trial (16 weeks) when she should have compared it with the estimate for a “split” liability trial (11 weeks). 92. While it is undoubtedly correct to say that, pending a ruling on the evidence that the appellant may present to the court in opposition to the application, it is more difficult to assess the potential for savings in time that may result from the modular trial sought, nonetheless, even on the appellant’s own version of events, there will be some saving of time. In this court, the way counsel for the appellant put it is that the more evidence that is heard on the issue of causation, the more the gap narrows between the determination of the issues by way of modular trial and the determination of the same issues within a full liability trial. That is undoubtedly so, but he did not suggest that will be no time-saving at all, or seek to resile from his statement in the High Court that there would be at least “some saving of time”. 93. In the context of the alternative being a trial of all liability issues that will, on the respondent’s analysis, take approximately 11 weeks, and on the appellant’s analysis take approximately six to eight weeks, the potential for saving even a small amount of time in relative terms could be significant. A saving of two weeks or even one week is a significant saving of time and cost, and should not be disregarded provided of course that it is not achieved at the risk of any prejudice to the appellant. Moreover, an acknowledged saving of time is a “clear saving of time” even if it is modest, and in circumstances where there is the potential for a significant saving of time depending on how the court ultimately rules on the evidence issue, it seems to me that the conclusion of the judge as to the saving of time is one that was open to her within the margin of the discretion that she enjoys in such applications. This is so even though the Judge erred in comparing the estimated duration of the modular trial with that of a unitary trial instead of a “split” liability trial. - 39 - 94. I have already mentioned above that in the course for judgment the judge observed that, if during the course of the hearing of the modular trial it becomes apparent that there is a risk of some prejudice to the appellant, then the court could “act appropriately”. As is apparent, this terminology is taken from the judgment of Clarke J. in Weavering, and is clearly intended to allow a court hearing the modular trial a broad discretion in the management of the trial so as to ensure that it does not result in any prejudice to the parties, and most particularly to the party who opposed it. However, counsel for the appellant submits that the so-called “safety net” referred to by Clarke J. in Weavering is intended to address issues that arise unexpectedly at trial, and that in circumstances where the difficulty has already been identified, and has not been resolved, it will have to be addressed at the hearing of the modular trial, and that has practical implications in particular for the appellant in preparing for the trial. While there is some validity in this submission, nonetheless the basic principle that the Judge will be able to address appropriately any issues of prejudice that may become manifest at the modular trial holds good. Moreover, it will be open to the trial judge, if she considers it appropriate, to address this issue by way of a preliminary hearing so as to obviate any difficulties of preparing for the full modular trial. In my judgment, the judge was entitled to place reliance on the flexibility that she undoubtedly has in the management of the trial so as to ensure that the appellant is not prejudiced. 95. So far as the second issue is concerned (i.e. the allegation of failure to intubate), counsel accepted at the hearing of this appeal that that it is more “self-contained” than the first issue, and more amenable to trial as a discrete issue, although he submitted that if the court rules in favour of the appellant on the first issue, it would not be appropriate for the court to order a modular trial on the second issue alone, because it could not be dispositive of the case. - 40 - 96. I will now address the issues in the light of the four questions proposed by Charleton J. in McCann v. Desmond: - (i) Are the issues to be tried by way of a preliminary module readily capable of determination