Posts in Case reports
Compulsory ADR out of the weeds - will the court order parties to mediate?

Nicola Bridge, Leah Alpren-Waterman and Rob Wilson of Mishcon de Reya LLP explain that the recent UK Court of Appeal judgment in Churchill v Merthyr Tydfil CBC  [2023] EWCA Civ 1416  signifies a significant shift towards compulsory ADR, departing from the previous stance set in Halsey v Milton Keynes General NHS Trust; it highlights the court's newfound authority to order parties to engage in ADR, provided it aligns with principles of fairness, legitimate aims, and proportionality to achieving those aims and marks a pivotal moment in the evolution of ADR within the civil justice system.

https://www.mishcon.com/news/compulsory-adr-out-of-the-weeds-will-the-court-order-parties-to-mediate

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Case reports, Refusing to mediateNic ScampionBack to all Resources
Wright v Pitfield and Wright [2022] NZHC 385

Section 145 of the Trusts Act 2019 enables the High Court to order that a dispute (as defined) be submitted to mediation (or other ‘ADR process’), provided the terms of the trust do not indicate a contrary intention and the dispute relates to an 'internal matter' (i.e. a matter to which the parties are trustee / beneficiary, or trustee / trustee).

In Wright v Pitfield and Wright [2022] NZHC 385, Venning J decided that s 145 (b) was engaged, the Court had jurisdiction to direct the parties to mediation, and the Court should exercise its discretion to submit the dispute to mediation as, with appropriate assistance, the issues between the parties were  capable of sensible resolution, and there was no good reason not to make the order. Venning J considered S v N [2021] NZHC 2860.

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Case reports, Trust disputesNic ScampionBack to all Resources
Braeburn Dairies Ltd v McGregor & White Electrical Ltd HC Dunedin CIV-2009-412- 668, 16 December 2011

French J awarded indemnity costs following "unreasonable conduct" relating to an aborted mediation. French J considered, Braeburn having committed to the mediation, that it was unreasonable for it to pull out at such a late stage. See my August 2022 article in the New Zealand Law Journal for analysis.

Braeburn Dairies Ltd v McGregor & White Electrical Ltd HC Dunedin CIV-2009-412-668, 16 December 2011

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Case reports, Refusing to mediateNic ScampionBack to all Resources
Leaderbrand Produce Ltd v Danfoss (New Zealand) Ltd HC Auckland CIV-2006-404- 6531, 19 June 2008

Harrison J saying he was not satisfied that there was even jurisdiction to take into account an unsuccessful party’s refusal to mediate before trial as a factor justifying an award of increased costs. See my August 2022 article in the New Zealand Law Journal for analysis.

Leaderbrand Produce Ltd v Danfoss (New Zealand) Ltd HC Auckland CIV-2006-404-6531, 19 June 2008

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Case reports, Refusing to mediateNic ScampionBack to all Resources
Glaister v Amalgamated Dairies Ltd (2003) 16 PRNZ 536 (HC)

Heath J , although he did not deny the possibility of sanctioning a failure to mediate in costs, held that when a party has largely succeeded in its claims it would be rare to penalise that party in the recovery of costs simply because it did not attend a mediation. See my August 2022 article in the New Zealand Law Journal for analysis.

Glaister v Amalgamated Dairies Ltd (2003) 16 PRNZ 536 (HC)

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Case reports, Refusing to mediateNic ScampionBack to all Resources