High Court: Modular trial directed in ‘slopping out’ case

High Court: Modular trial directed in 'slopping out' case

The High Court has directed a modular trial in a “slopping out” case which is prima facie out of time, the events complained of having occurred 16 years prior to the institution of proceedings.

Delivering judgment for the High Court, Mr Justice Garrett Simons determined that: “It would be unsatisfactory if a defendant who, on the face of it, appears to have a complete defence to the proceedings by reference to the expiration of a statutory time-limit… was nonetheless put to the time and expense of preparing for and participating in a full trial of the action in circumstances where the proceedings might ultimately be found to be statute-barred.”


On 19 June 2019, the plaintiff issued proceedings contending that she was subject to a “slopping out” regime in Limerick prison whereby she was required to use a chamber pot overnight and to empty it into a sluice the following morning, and that she was not provided with adequate medical care or supervision in relation to her mental health and depression.

The defendants alleged that the proceedings were inadmissible for delay, the events having occurred approximately 16 years prior to the institution of the proceedings, and were statute-barred pursuant to inter alia the Statute of Limitations 1957. The defendants applied to the High Court to either have their “delay point” heard as a preliminary issue pursuant to Order 25 of the Rules of the Superior Courts (RSC) or for a modular trial pursuant to the court’s inherent jurisdiction and/or Order 36, rule 9(1) RSC.

The plaintiff maintained that she had been of “unsound mind” and so qualified for an extension of the limitation period pursuant to s.49 of the Statute of Limitations. The defendants highlighted that the plaintiff had issued personal injuries proceedings in 2006 arising from an alleged assault whilst she was imprisoned, and that she was capable of instructing solicitors then.

The High Court

Mr Justice Simons firstly observed that the application would be more properly brought pursuant to the court’s inherent jurisdiction and/or Order 36, rule 9(1) as in applications for the trial of a preliminary issue there must be agreement in relation to the material facts of a case. The court referred to Donatex Ltd v. Dublin Docklands Development Authority [2011] IEHC 538 as authority for the proposition that an application for a modular trial should not be used as a “backdoor method” of seeking a determination on a preliminary issue where the court would not have facilitated same.

Mr Justice Simons then considered the relevant criteria in respect of the court’s inherent jurisdiction to order a modular trial as set out in McCann v. Desmond [2010] IEHC 164, [2010] 4 I.R. 554 and Cork Plastics (Manufacturing) v. Ineos Compound U.K. Ltd [2008] IEHC 93, including issues of prejudice, savings of time and cost, whether a modular trial would genuinely assist the litigation by resolving the issues and whether there would be a significant overlap in the evidence and witnesses relevant to all modules.

The judge considered that in order to decide whether a modular trial would result in a saving of time and costs, it was necessary to compare the nature and extent of the legal and factual issues which would arise at the modular trial with those likely to arise at the substantive hearing.

Finding that a modular trial on the delay point would focus on the plaintiff’s state of mind during the limitation period, Mr Justice Simons confirmed that “the plaintiff would have to establish that she was labouring under a statutory disability, i.e. was of ‘unsound mind’, as of the date of the accrual of her respective causes of action. The plaintiff would also have to establish that she had instituted proceedings within either two or six years of her statutory disability ceasing. This would, presumably, necessitate the plaintiff establishing that she was of ‘unsound mind’ up and until, at the very earliest, 2013.”

The High Court set out that a modular trial would mainly consist of a consideration of the plaintiff’s mental health in the years following her first term of imprisonment, with the plaintiff and experts from both sides likely to give evidence, and likely with submissions on the concepts of “unsound mind”, “psychological injury”, on the relevant legislation and the implications, if any, of the plaintiff’s institution of personal injuries proceedings in February 2006.

Estimating that a modular trial on the delay point would take no more than one or two days to be heard, Mr Justice Simons contrasted this with counsel’s estimation of two weeks for the hearing of the substantive action, finding that the substantive hearing would be much longer and the documentation to be considered would be different, with extensive discovery required in advance of the substantive hearing.

Having determined that a modular trial would allow for savings of time and costs, the court considered the plaintiff’s submissions that she would be required to give evidence twice and that there would be a duplication of legal costs. Mr Justice Simons disagreed, finding that the courts “are alive” to the challenges for vulnerable people of giving evidence and could take measures to alleviate these challenges, and finding it unlikely that there would be a duplication of costs as the issues arising in the modular trial would be different than at the substantive hearing and the plaintiff would be entitled to her costs if the modular trial was resolved in her favour.

Considering the conduct of any appeals which might be taken in relation to a modular trial and the substantive hearing, Mr Justice Simons observed: “It is correct to say that, in the event the delay point is not dispositive of the proceedings, there might be a second appeal. This is not, however, a reason to refuse a modular trial. The time expended before the High Court and the Court of Appeal in relation to the delay point is likely to be much shorter than the time expended before the High Court alone in a unitary trial. This potential saving of time and costs for the parties justifies the risk that there might be two appeals.”


Accordingly, the High Court directed a modular trial.

McGovern v. Governor of Limerick Prison & Ors [2024] IEHC 210

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