Court of Appeal considers the use of mediation in personal injuries proceedings

Keith Ryan – v – Walls Construction Limited [2015] IE CA 214

The use of mediation in Court proceedings is becoming increasingly common.  Mediation is firmly established in the Commercial Court Division of the High Court and many members of the judiciary are ardent supporters. That said, mediation has yet to gain significant traction in the personal injuries claims landscape.

In the above employer liability claim, the Plaintiff proposed that both parties engage in a process of mediation after the Defendants had filed a full defence and after an extensive discovery process had been undertaken. The Defendants refused to engage in mediation on the basis that they felt that it would be “a worthless exercise”.

Under the Rules of the Superior Courts, the High Court is generally permitted to adjourn proceedings to allow the parties an opportunity to engage in a process of Alternative Dispute Resolution (ADR).

That said, the Court does not actually have power to direct that the parties submit to an ADR process; the Court can simply adjourn the proceedings to allow the parties time to consider whether ADR is appropriate or not.  This is a reflection of the voluntary nature of the ADR process and of mediation in particular.

In personal injuries cases, the Civil Liability and Courts Act 2004 gives the High Court the power to direct a mediation conference regardless of whether the parties consent or not.

In this case, an extensive process of discovery had been completed, a Notice of Trial had been served and the action was ready for hearing.

Judge Cooke directed that the parties engage in a process of mediation within a specified time period.  The Defendants appealed that decision to the Court of Appeal.

In giving judgment on behalf of the Court of Appeal, Judge Kelly (himself an ardent supporter of mediation) held that the parties should not be forced to engage in a process of mediation if they do not wish to do so.

He added that the Court should ensure that when making an order for mediation it is not simply adding costs and delay.

Our sense is that this decision stands very much on its own facts and in particular the stance taken by the individual parties to the litigation.

Judge Kelly noted that the Commercial Court experience has been that mediation has the greatest prospect of success if it is sought immediately after the pleadings have been closed and prior to the commencement of an expensive and time consuming discovery process.

For further information please contact Killian O’ Reilly  or  Mark Kelly at mkelly@mcdowelklpurcell.ie.