The proceedings commenced in 2003 and arose from the refusal by the defendants to grant the Plaintiffs various applications for licences, surveys, exemptions and other matters. The Plaintiffs challenged decisions taken by officials of the first named defendant which they claimed were made unlawfully, unfairly, discriminatorily and/or in breach of European law. It was claimed that the decisions amounted to misfeasance in public office and/or a tort and/or a breach of the plaintiffs’ rights in law and/or constitutional rights and/or rights in European law. It was also alleged that the relevant EU Directive was been inadequately transposed into Irish law and that all these acts caused damage to the Plaintiffs' business.
Discovery had been completed and the case was ready to be set down for trial when the Plaintiffs’ solicitors wrote to the Defendants’ solicitors inviting them to agree to refer the matter to mediation. The Defendants refused, stating that the case was not suitable for mediation.
Seven months later the Plaintiffs issued a motion seeking the invitation of the Court to proceed to mediation. The order was sought on the basis that there would be a considerable saving of court time, costs and expenses if the mediation was successful. The Plaintiffs also argued that, as the first named Plaintiff and the Department officials, had and would continue to have dealings with each other into the future, it would be preferable for all concerned if matters could be resolved without the need to go to trial.
The Defendants objected firstly due to delay but also on the ground that, as the claims advanced made very serious allegations against public officials, the proceedings were not appropriate for mediation. They also argued that proceedings seeking declaratory reliefs were not appropriate for mediation and pointed out that, given the size and nature of the claim, any mediation would be a lengthy process.
Costello J referred to the decision of the Court of Appeal in Atlantic Shellfish Ltd & Anor v The County Council of the County of Cork & Ors  IECA 283 (read our Briefing) where Irvine J pointed out that the Court should only exercise its discretion to invite parties to consider mediation if it considers it “appropriate" to do so “having regard to all of the circumstances of the case”. In the light of that decision Costello J considered that she had to decide whether the issues in dispute between the parties were readily amenable to mediation.
She held that she was not satisfied that the multitude of complex issues in the proceedings was amenable to mediation. She noted that the plaintiff had not indicated any areas of contention or parts of the claim which might be resolved or narrowed in the context of the mediation and that a mediation could not result in the declaratory reliefs sought. She also noted that a resolution of the proceedings would be based upon parties abandoning the positions they had maintained for thirteen years and while this was not impossible, it was a matter of considerable weight in the exercise of her discretion.
Costello J commented, that the experience of the courts, is that proceedings are most likely to be resolved by mediation after the pleadings are closed but before the parties have incurred the expense of complying with discovery. They are far less likely to be resolved by mediation just before the case is ready to proceed and in circumstances where one party does not wish to engage in the mediation process.
Costello J was satisfied that it was not unreasonable for State defendants to maintain their entitlement to have a claim involving allegations of misfeasance of public office resolved in court where the actions of the officials could be tested and/or vindicated in public.
Accordingly Costello J held that the issues in dispute between the parties were not amenable to being disposed of by mediation and she exercised her discretion to refuse the order sought.