The Court of Appeal has dismissed an appeal by Atlantic Shellfish Limited and its director, David Hugh-Jones, after the High Court refused to invite the parties to mediate their long-running oyster fishery dispute.
The appeal concerned only whether the court should make an order under Order 56A, rule 2 of the Rules of the Superior Courts inviting the parties to use alternative dispute resolution. The Court of Appeal upheld the refusal. It did not decide the underlying claims about sewage discharges, liability or damages.
Atlantic owns an oyster fishery in Cork Harbour. The plaintiffs allege that sewage discharged near the oyster beds contaminated the fishery, damaged the business and contributed to its permanent closure in October 2002. They also say a wastewater treatment plant did not meet the terms of a settlement in earlier proceedings. Those claims remain allegations in the source judgment.
The current proceedings began in 2001. In 2010, the High Court ordered by agreement that liability be determined before the issue of damages. The plaintiffs later asked the defendants to mediate and, after the State defendants did not agree, sought a court invitation. The County Council had indicated general willingness to mediate, subject to Irish Water, which had since joined the case, being involved.
The State defendants opposed the application. They argued that the claims against them raised legal questions about the Minister’s responsibilities in relation to foreshore licences, which required determination by a court. They also relied on the split trial and said mediation could require substantial preparation and expense before the liability issues were decided.
The Court of Appeal set out principles for applications under Order 56A. A judge should first consider whether the issues are reasonably suited to the proposed ADR process and whether it has a realistic prospect of resolving or substantially narrowing them. Other relevant circumstances can include the parties’ conduct, existing court orders, likely costs and potential effects on the progress of the case. The court also said an application should be made genuinely, rather than solely to affect the costs position.
Applying those principles, the court was not satisfied that mediation could resolve or narrow the legal issues pleaded against the State defendants. It also considered the proposal inconsistent with the agreed sequencing of the trial and potentially complex, lengthy and expensive.
The court dismissed the appeal, leaving the High Court’s refusal in place. The judgment did not direct the parties to mediate or determine the merits of the underlying case.