Section 15 of the Civil Liability and Acts Act 2004 confers a jurisdiction on the High Court in personal injury claims to compel parties to mediate their differences. The Court of Appeal held that a court should not countenance the making of such an order in circumstances where there had been no realistic attempt at settlement on a face-to-face basis, discovery was complete and a hearing was imminent. The making of an order for mediation against an unwilling party at such a late stage in proceedings was only more likely to contribute to further expense and delay.
The plaintiff, Mr Ryan, was involved in two accidents in the course of his employment. The first occurred in 2005 and the second in 2006. He brought two separate High Court claims which were consolidated by an order made in 2009 by Herbert J.
At the High Court, Cooke J, took the view that the case was apt for an attempt at mediation, as the parties were in an employment relationship, and the case did not involve a full contest. The judge expressed the view that the long delay in the proceedings militated in favour of such an order.
The defendant appealed to the Court of Appeal contending that:
No recourse had been sought to the normal method of attempting to dispose of personal injury litigation, namely a settlement meeting.
The first accident was not of any significance and no long term sequelae had been suffered.
The plaintiff had not delivered a schedule of special damages or any vouchers in support of them.
Reliance was placed on the continuing default in the plaintiff's compliance with SI 391/998.
It did not intend to make an offer to settle the plaintiff's claim in respect of the second accident.
The mediation would add an unnecessary layer of costs.
There was no agreement as to who should bear the costs of the mediation or the mediator.
The plaintiff submitted that none of the reasons as to why a mediation conference should not be directed were valid since none of them addressed the issue of whether mediation would assist in reaching a settlement of the action.
The Court of Appeal allowed the appeal and discharged the order for mediation which was made. Delivering the judgment, Kelly J. held that the High Court judge had made an error in making the order. He was not satisfied that it could be said that given the circumstances in the present case the making of an order would actually assist in reaching a settlement in the action, which was a statutory pre-condition for a section 15 order.
Kelly J. stated: "The experience in the Commercial Court has been that mediation had the greatest prospect of success if it was sought immediately after the pleadings were closed and when the issues had therefore been defined, but prior to the commencement of the expensive and time consuming discovery process. I see no reason why the same approach ought not to apply in the context of personal injury litigation."
This decision highlights the importance of seeking mediation as early as possible in proceedings, after pleadings are closed, and before discovery is made. It shows that whilst the courts may order mediation in personal injuries actions, they may only do so where such an order would assist the parties in reaching a settlement of the action.
In all other civil litigation (except personal injuries actions) at the High Court, and Commercial Court, the court is limited to adjourning the proceedings so as to allow the parties' time to consider whether ADR is appropriate. The court does not have power to direct that the parties submit a dispute to an ADR process. In delivering his judgment Kelly J. emphasised the importance of the voluntary nature of the mediation process, and stated that in his view "any element of compulsion attendant upon a reference to mediation will certainty not enhance its prospects of success". However he concluded that it was the prerogative of the legislature to legislate for compulsory mediation, and section 15 must be respected.
It is worth noting, despite this judgment, that the courts and judiciary actively encourage mediation in the resolution of disputes. It is firmly established and well respected in this jurisdiction, and has proved to be highly beneficial in bringing about settlements of disputes.