CLA News / Compulsory Mediation – Another Step Forward
Beer, Football and cracking hard nuts by Brian Speers
I enjoy all sport, perhaps my tendency is towards rugby and football but if the golf is on or if there is some cricket to watch I will be glad to observe. My son is a Manchester City supporter, and my son-in-law supports Manchester United. I have tended not to support any team because becoming over passionately involved detracts from the ability to enjoy the spectacle as a neutral.
However given my interest in mediation and dispute resolution and that declaration of sporting interests, you will understand why I could not fail to have been interested in a recent judgement involving Manchester City, Superdry, The Asahi Super “Dry” beer and compulsory mediation.
All of these elements came together in a pre-trial review application considered by Mr Justice Miles in the business and intellectual property list of the Chancery Division of the High Court in England and Wales in a trademark infringement case (DKH Retail Ltd and Ors v City Football Group Ltd [2024] EWHC 3231 (Ch))
The issue was not without interest. Superdry, the clothing manufacturer had an objection to the presentation of promotional branding on the Manchester City’s players’ kit which read ‘Super “Dry”’ Asahi 0.0%’. Superdry, the clothing label, considered that this would be confusing and that people would believe that Superdry, the clothing label, as opposed to Super Dry Asahi beer was a sponsor of Man City.
It seems that Superdry, the clothing company, had secured the ‘Superdry’ trademark.
The matter was set to be litigated, and a pre-trial review occurred on 21st November 2024. At this pre-trial review, Superdry applied for an order that the Court compel the parties to mediate.
There were certainly other substantive issues to do with disclosure of contracts and confidentiality but for the purposes of this article I am considering the mediation issue.
Having received an application for compulsory mediation, Mr Justice Miles reflected on the case of Churchill v Merthyr Tydfil County Borough Council 2023 EWCA Civ 1416. In this case the Court of Appeal determined that the Court had power to order unwilling parties to engage in alternative dispute resolution. In addition, Mr Justice Miles noted that the Court of Appeal had taken into account the report of the Civil Justice Council ADR Working Group which had reported in 2018.
The claimants, Superdry, submitted that some procedural changes which had occurred since the Churchill case should bring about a change of the Court’s approach to mediation and they also referenced the “overriding objective” to ensuring that the Courts resources were properly allocated. Superdry contended that in this case the Court should exercise its power to order a mediation.
Manchester City argued that the Court should only order mediation where there was a realistic prospect that should succeed. Counsel for Manchester City submitted that mediation was not realistically likely to lead to settlement.
In addition, Man City asserted that it was too late for the Court to order mediation given the stage of proceedings – the parties were substantially ready for trial. Finally, it was submitted that Man City were entitled to a Court determination and mediation would not achieve the certainty of a Court determination.
Mr Justice Miles indicated that while seeing some force in Man City’s submission that it was late in the day to be seeking a Compulsory Mediation Order, it may also be said ‘that there is some advantage in the parties’ positions having been crystallised through pleadings and the service of witness statements’. He reflected that sometimes objection to mediation is at a different stage in the proceedings and the objection is because mediation is premature and proposed at a stage when the parties’ positions were unknown.
He also acknowledged that the legal representatives of Superdry and Man City were experienced solicitors and if there was to have been a settlement, one might have expected it to have been reached by the pre-trial stage however in an important statement in support of mediation the Judge said ‘that argument does not do full justice to experience which shows that bringing the parties together through mediation can overcome an entrenched reluctance of parties to negotiate even where sincere’.
He went on to say that the purpose of mediation was to ‘remove roadblocks to settlement’. He felt unable to accept the submission of Man City that a mediation had a low prospect of success and adjudication by a Court is necessarily required.
Interestingly he went on to say the range of options available to the parties to resolve the dispute through mediation goes beyond the binary answer a Court could provide. The Judge observed that there may be solutions other than yes or no.
He considered that a mediation in this case would be short and sharp, the documents would be brief and a mediation would not significantly disrupt the preparation for trial.
In perhaps the most noteworthy quotation from his judgement, Mr Justice Miles stated ‘experience shows that mediation is capable of cracking even the hardest nuts’.
He observed that mediation process succeeds in cases where the parties appear at first to have intractable differences. He thought that a mediation would be able to focus on solutions rather than raking over historical grievances.
To those who are proponents of and advocates for mediation, this is a most welcome judgement and a powerful justification for mediation, even where parties are seemingly intractably at odds and with diametrically opposing views.
The endorsement of the ruling of the Court of Appeal in Churchill that the Courts could order parties to mediate was put into effect in this case. The Court ordered Man City and Superdry to mediate during December 2024 and to report its outcome to the Court as soon as possible after the mediation was complete.
In what was a pleasing post-script to the judgement, Mr Justice Miles added the following ‘On 13th January 2025 the parties notified the Court that they had settled their dispute’.
This case shows what Mediators know, namely that the parties, even if reluctant and even if they believe that no solution is possible, can find that a solution is possible when a Mediator brings their skills into play. These skills include the ability of a neutral, trained, impartial Mediator to consider with each party the strengths and any weakness of their positions, to explore options that might not be available to a Court, and to focus on interests and not rights. In this case like so many other intractable disputes, expensive, time-consuming litigation which would have been very much in the public eye given the prominence of these parties was resolved to the parties satisfaction.
It will be interesting to see what other Courts do when asked to make a Compulsory Mediation Order.
Brian Speers
Past President, Commonwealth Lawyers Association
