The High Court uses its powers to order mediation

“The purpose of mediation is to remove roadblocks to settlement.”

“Experience shows that mediation is capable of cracking even the hardest nuts.”

The High Court’s Business and Property Courts (England & Wales) have used their recently-acquired powers to order parties to engage in Alternative Dispute Resolution (ADR). A trademark dispute between the owners of the Superdry brand and the company that runs Manchester City Football Club’s commercial operations settled after the court ordered mediation: DKH Retail Limited & others v City Football Group Limited [2024] EWHC 3231 (Ch).

The dispute concerned promotional branding on professional sportswear and whether the public would see the branding as representing the Superdry brand or the defendant’s sponsor, Asahi Super “Dry” 0.0% lager.

In a pre-trial review, the court (Mr Justice Miles) considered the claimant’s application for mediation to be ordered before the trial took place. In so doing, he referred to the Court of Appeal’s decision in Churchill v Merthyr Tydfil Country Borough Council [2023] EWCA Civ 1416, in which the Court of Appeal decided that it had power to order unwilling parties to engage not just in mediation, but in ADR more broadly. Mr Justice Miles also noted that further to Churchill, changes to the Civil Procedure Rules (CPR) had taken effect on 1 October 2024, affording express power to the courts to order parties to use and facilitate the use of ADR and to order them to participate (CPR 1.4, 3.1 and 29.2(1A)). He stated: “The purpose of mediation is to remove roadblocks to settlement” and “Experience shows that mediation is capable of cracking even the hardest nuts.”

Taking account of the parties’ respective arguments, the court ordered the parties to mediate, placed a time limit on when they were to do so, and ordered them to report the outcome to the court after the mediation had been completed. The parties subsequently notified the court that they had settled their dispute.

We can expect to see the courts In England & Wales using these powers in a broad range of civil and commercial sectors.

(Note: since 22 May 2024 it has been compulsory in England & Wales for parties in small money claims (up to £10,000) to participate in a free one-hour mediation appointment, provided by the courts’ Small Claims Mediation Services).