The Chancery Guide 2022 states: ‘10.13 Where a High Court Judge (‘HCJ’) grants permission to appeal against a decision of the County Court or adjourns the application for permission to appeal or permission to appeal out of time, or both, for a hearing, the appeal will be recommended for mediation unless the HCJ otherwise directs. …
10.15 The recommendation is not compulsory, though a failure to mediate following a recommendation may well have consequences for any order for costs at the end of the appeal. …’
Paragraph 10.8 states: ’The court may also stay the case or adjourn a hearing of its own motion to encourage and enable the parties to use ADR. The stay will be for a specified period and may include a date by which representatives of the parties with authority to settle and their
legal advisers are required to meet, or a requirement for parties to exchange lists of neutral individuals who are available to carry out ADR and seek to agree on one. If agreement cannot be reached, the CMC can be restored for the court to facilitate agreement. Although the court may strongly recommend mediation, it cannot order that a mediation takes place and will not recommend an individual or body to facilitate ADR.’ So, although Judges in the Business and Property Courts (which does not include the CLCC) cannot compel mediation, they can in effect start the ball rolling (‘HCAMS’), or create a ‘breathing space’ (para 10.8) for consideration e.g., following the first CMC. Therefore if a Judge in the CLCC at the first CMC, refuses: (i) an application for JENE without consent (which the court has the power to order), and (ii) a subsequent submission that a ‘stay be granted for mediation’, made afterwards during the case-management ‘directions’ stage of the CMC, exclaiming ‘Let’s have a trial!’, if this behaviour results in a successful appeal it will automatically trigger HCAMS. Such a judge should therefore always allow submissions to be made and heard about the merits of ordering a stay for mediation, and provide detailed reasons ‘on the record’ of why he considers that a stay is ‘not appropriate’. A judge who reasons mediation is not appropriate simply because the parties are too far apart,’ is wrong, because that is precisely when mediation is appropriate, as is JENE, and Chancery FDR. For a discussion of the authorities which support this proposition, see my article in Trusts & Trustees – ‘Judicial-ENE and the New Normal’, published by Trusts & Trustees (Oxford University Press), 14 December 2020, which can be downloaded on the ‘Publications’ page at www.carlislam.co.uk.