In Carillion JM Ltd v Bath and North East Somerset Council and anor [2009] EWHC 166 (TCC), the Court had to consider when preliminary issues should be ordered as a means of saving time and costs. The court noted that it should always think twice before ordering preliminary issues in a substantial case where the defendant is opposed to proceeding in that manner. It is always preferable that preliminary issues proceed by consent. Contested repudiation issues will almost always be unsuitable for decision without hearing oral evidence from those involved at the time.  

Significant difficulties can arise where proposed preliminary issues are accepted by all parties to be important, but where they are underpinned by a large number of factual disputes, or where the evidence relating to the proposed preliminary issues may have to be trawled over a second time at the full trial, whatever the result on the preliminary issues. In those circumstances, the court will usually conclude that the issue in question is unsuitable for separate and early determination. To read the judgment click here.