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Four Recent Cases on Mediation

By: Mark Tottenham BL

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Adjournment for mediation could be refused where previous attempts to settle had been unsuccessful

Danske Bank v. SC [2018] IECA 117 (Court of Appeal, Gilligan J, 23 April 2018)
In a claim by a receiver against the former wife of a purchaser of property concerning the entitlement to rental income, the defendant sought to have the proceedings adjourned to facilitate mediation. In circumstances where previous attempts to settle had been unsuccessful, where the pleadings had not closed, and where there was a pending application for interlocutory relief, the High Court (O’Connor J) refused to grant the adjournment. An appeal to the Court of Appeal was dismissed, on the grounds that the trial judge had the discretion to refuse an adjournment in the circumstances.

Lodgement could be made after unsuccessful mediation

Emerald Isle Insurance and Investments Ltd v. Dorgan [2018] IEHC 214 (High Court, Meenan J, 3 April 2018)
In an assessment of damages, there had been an unsuccessful attempt to resolve the action by mediation. The defendants then made a lodgement in satisfaction of the plaintiff’s claim. The plaintiffs objected, contending that the lodgement could only be made with leave of the court. They argued, inter alia, that the mediation had given the defendants an unfair litigation advantage. However, prior to the mediation, the defendants had written to say: “Whilst it is hoped that the dispute can be resolved through mediation, please note, for the avoidance of doubt, that our client is reserving its rights to rely on/or restore the lodgement previously made and/or to make a new lodgement in the event that the dispute is not resolved at mediation.” Relying on the letter, and on previous case law, the High Court held that in the circumstances a lodgement was permissible.

Mediation was not appropriate where declaratory reliefs sought

Grant v. Minister for Communications [2016] IEHC 328 (High Court, Costello J, 14 June 2016)
A claim was brought by boat owners against the Minister for Communications, alleging that they had been subjected to a series of decisions by the staff of the department for the improper purpose of damaging the boat owners’ business, and seeking declaratory reliefs. They wrote to the defendant’s solicitors seeking mediation, but the defendants took the view that mediation was not appropriate. The boat owners subsequently sought an order to adjourn the proceedings for mediation. The High Court refused the application on the grounds that a case of such complexity, seeking declaratory reliefs, could not be settled in mediation without the abandonment of some of the reliefs sought. The judge also commented: “It is the experience of the courts 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 a mediation just before the case is ready to proceed a fortiori where one party does not wish to engage in mediation.”

Defendants entitled to have complex legal issues determined by court rather than mediation

Atlantic Shellfish v. Cork County Council [2015] IECA 283 (Court of Appeal, Irvine J, 7 December 2015)
A dispute concerning an oyster fishery concerned complex legal issues. The plaintiffs sought an order to adjourn for mediation. This was refused by the High Court (Gilligan J). In dismissing the appeal, the Court of Appeal commented: “… I do not believe it is unreasonable for the party against whom complex legal claims have been made, and which may have ramifications that extend well beyond the confines of the proceedings and their parties, to maintain their entitlement to have those issues resolved by the court, as is the position of the State defendants in this case who seek clarification as to the obligations and consequences that flow from the grant of a Foreshore Licence.”

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