‘The approach of the court in ordering compulsory mediation post 01.10.2024 – DKH Retail Ltd & Ors v City Football Group Ltd [2024].’

The judgment of Mr Justice Miles in the recent case of DKH Retail Ltd & Ors v City Football Group Ltd [2024] EWHC 3231 (Ch), in which the learned judge considered an application made at a Pre-Trial Review, for compulsory mediation before trial (in a Shorter Trials Scheme case about a trade mark), is instructive of the approach of the court in ordering compulsory mediation post 01.10.2024.

Compulsory mediation was ordered, and the case settled.

I have invited my editors at the Law Society to include paras [28] to [44] of the judgment in my forthcoming book, the 2nd Edition of the Contentious Probate Handbook, which is on schedule for publication in 3/4 weeks time.

I would also like to thank my colleague at 1 EC Barristers in London – the ‘very very learned!’ – Mr Jacob Meagher Esq. (https://lnkd.in/eYCXyuxB), for bringing this case to my attention.

Note what the judge stated in:

[31]  The claimants submitted that [the 01.10.2024 CPR] changes recognise a sea-change in the approach of the courts to ADR. They said that another important aspect of the overriding objective is to ensure that the court’s resources are properly allocated not only to the parties but to other court users.

[32]  The claimants referred to the findings of the Civil Justice Council ADR Working Group that mediation has worked in complex and entrenched disputes, including where the ADR process appeared to be unlikely to succeed and where one or other party believed that he or she had a strong case.

[33]  The claimants contended that this is a case where the court should exercise its power to order a mediation. …

[34]  … [T]here has been no mediation to date, although there have been unsuccessful settlement negotiations. The parties are about to incur hundreds of thousands of pounds of further costs. A short, sharp, mediation of one day before the end of December may well allow the parties to avoid at least some of those costs. This would also potentially save court time and resources.

[38]  … [I]n many cases the parties’ positions in the litigation are diametrically opposed and it may easily be said that each party requires a judicial determination. But nonetheless the parties come through ADR to recognise the desirability of settling for less than their strict legal rights and compromising their positions. Experience shows that mediation is capable of cracking even the hardest nuts. The process sometimes succeeds in cases where the parties appear at first to have intractable differences.

[40]  … The purpose of mediation is to remove roadblocks to settlement. …

[41]  A mediation of this case will be short and sharp, and the documents needed for it would be brief. The defendant did not suggest that mediation would significantly disrupt the parties’ preparations for trial.

Notes added:

‘The ‘too late in the day’ paradox’ –

The defendant submitted that it was too late for ADR:

‘[37] Counsel for the defendant also says that it is very late in the day to seek the order, that the parties have already spent hundreds of thousands of pounds, and that the trial is imminent. He also says that his client had very limited availability for a mediation in December. In short, it is too late in the day; it is not a case where his client is being obstructive; mediation will fail; and this is a case where a ruling is needed.
[39] I see some force in the defendant’s submission that it is late in the day to be seeking an order, but it may also be said that there is some advantage in the parties’ positions having been crystallised through pleadings and the service of witness statements. It is indeed sometimes an objection to mediation that it is premature, proposed at a stage when the parties’ positions are unknown. That cannot be said here.’

The ‘too late in the day’ paradox is that if preparation for trial is nearly complete, then ADR cannot significantly disrupt i.e. impact upon the ‘critical path’ for completion of preparation, i.e. the Defendant’s argument was based upon a false premise.