The Court of Appeal set aside a High Court order requiring Keith Ryan and Walls Construction Limited to attend mediation in a personal injury action. It held that the court could compel parties to attend under section 15 of the Civil Liability and Courts Act 2004, but concluded that the circumstances did not show the conference would assist in reaching a settlement.
The dispute arose from two workplace accidents in 2005 and 2006. The claims were consolidated. The company admitted liability for the first accident, which was proceeding as an assessment of damages. Liability remained disputed, or at least unclear from the pleadings, in the second claim. The judgment noted that the High Court judge had been incorrectly told by defence counsel that liability was not contested.
In December 2013, Cooke J. ordered a mediation conference, pointing to the delay in the proceedings and considering the case suitable for mediation. The company appealed. It argued, among other things, that no settlement meeting had taken place, discovery was complete and the case was close to a hearing, and it did not intend to offer a settlement for the second accident. The plaintiff argued that mediation could still assist with the first claim or narrow the issues, even if it did not resolve the entire dispute.
Delivering the Court of Appeal judgment, Kelly J. explained that section 15 permits a court, on a party’s request and before trial, to direct a mediation conference if it considers that the conference would assist in reaching a settlement. The parties’ consent is not required, and a party cannot veto an order simply by refusing to participate. That power differs from the court’s powers under the procedural rules, which allow it to invite parties to consider alternative dispute resolution.
The court also cautioned that a compulsory conference should not simply add costs and delay. It said courts should generally be slow to order mediation where the parties have not first tried face-to-face settlement, discovery is complete and the case is on the threshold of a hearing. In this case, no settlement meeting had occurred, discovery had been completed and the action was ready for a hearing date. The court was not satisfied that the order would assist settlement, as section 15 requires.
The appeal was allowed and the High Court’s mediation order was discharged. The judgment also criticised delays by both sides: the accidents occurred in 2005 and 2006, but the plaintiff’s discovery was not completed until July 2013.