The High Court has made an order at a pre-trial review which required the parties to mediate their trade mark dispute, despite the defendant's objection that there was no real prospect of settlement and the parties needed a judicial determination: DKH Retail Ltd v City Football Group Ltd [2024] EWHC 3231 (Ch).
The Court of Appeal's decision in Churchill v Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416 in late 2023 (see our blog post here) paved the way for the courts to compel even unwilling parties to engage in ADR. The Civil Procedure Rules (CPR) were amended in October last year to confirm the court's power to compel ADR (see here). The present decision (which dates back to 21 November but has become publicly available more recently) appears to be one of the first in which the High Court has exercised that power in practice.
The court in the present case recognised that the dispute was between commercial parties with experienced solicitors, and therefore might have been expected to settle already if that was realistically possible. Noting however that "mediation is capable of cracking even the hardest nuts", the court did not accept that a mediation would have low prospects of success – a view which appears to be vindicated by a postscript to the judgment recording that the parties had subsequently settled their dispute.
The decision illustrates the court's broad discretion to order parties to engage in ADR, and some of the factors it may consider – including the prospects of settlement, though it suggests the court may not always accept the parties' views on that question. Another factor that may have been relevant is that, while the dispute was between sophisticated commercial parties, it was presumably not the most complex of cases as it was proceeding in the Shorter Trials Scheme and, as the judge put it, a mediation would be "short and sharp" and would not significantly disrupt trial preparation. This was also, effectively, the last chance to settle before an imminent trial, so it could not be said that mediation was premature.
For more information see this post on our Litigation Notes blog.
Disclaimer
The articles published on this website, current at the dates of publication set out above, are for reference purposes only. They do not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking any action.