The Court of Appeal has long had a scheme to encourage parties to mediate. Since about 2012, certain cases have been automatically referred to the scheme unless the judge granting permission thought there was a good reason not to.
The eligibility criteria for automatic referral are quite narrow. Automatic referral is limited to cases involving unrepresented litigants, and to certain types of litigation, such as personal injury and clinical negligence, or boundary disputes.
The form used by the Court of Appeal (PTA Template 269C1) has a section headed “Mediation”. The first part of the form asks if (where permission is given) the case is eligible for the automatic referral scheme and lists the categories.
If the case is not eligible, the form asks, “Do you wish to make a recommendation for mediation?”.
Given the hundreds of applications for permission to appeal each year, until recently there has been a surprising lack of judicial commentary on the effect of recommendations for mediation made at the permission stage.
However, times may be changing. In two recent judgments by Arnold LJ (who granted permission in each case), the judge made observations (in paragraph one) on his recommendations to mediate, and the fact that neither case had settled.
In THJ Systems Ltd v Sheridan [2023] EWCA Civ 1354; [2024] E.C.D.R. 4, he said:
“I granted permission for both appeals[1], but on both occasions I recommended mediation to the parties. It is unfortunate that the parties have been unable to resolve their differences, because it seems likely that the costs of the appeals will have greatly exceeded what is at stake.”
Similarly, in Yours Naturally Naturally Yours Ltd v Kate McIver Skin Ltd [2023] EWCA Civ 1493; [2024] E.T.M.R. 9, he said:
“I granted permission to appeal, but recommended mediation. It is regrettable that the parties have not been able to resolve their dispute because it seems likely that the costs of the appeal will have exceeded what is at stake.”
Whether these observations, made in judgments issued less than a month apart, represent a new energy in the Court of Appeal’s push towards mediation, or whether they were simply coincident remains to be seen. However, practitioners should not be surprised if it is the former. The English civil justice system wants parties to mediate and is willing to sanction those who do not.
[1] I.e. the Defendant’s appeal and the Claimant’s cross appeal