It is frequently the case that the Court will order a stay to be imposed, so that the parties can arrange a mediation. However, it may not always be appropriate to order a stay, such as in the recent multiparty construction case: CIP PROPERTIES (AIPT) LTD (Claimant) v GALLIFORD TRY INFRASTRUCTURE LTD & Others (2014). At a Case Management Conference, the Defendant had requested a 4 month stay, prior to disclosure. This was a very high value construction case proceeding in the TCC, worth over £18 million. The trial estimate was at least six weeks and expert evidence in numerous disciplines would be required.
The Judge considered that the Court’s priority should be the requirement “to put in place a cost-efficient and sensible timetable to lead up to a fixed trial date” and that it was “usually inappropriate” for the Court to put the proceedings on hold because the delay “inevitably increase the costs of the case”. In the judge’s view, the fixing of any lengthy ‘window’, for purposes unconnected with the preparation for trial ” is bad case management.”
In this case there was also a dispute about timing, with one party, as is often the case, opposing fixing the ‘window’ before disclosure, saying that they needed disclosure first. The Judge considered that their position was understandable as they would not have seen the contemporaneous documentation. He considered that it is inappropriate for the court to decide precisely when the parties should mediate as it is a consensual process and that it is wrong in principle for the court to fix a ‘window’ for ADR at a time when at least one significant party does not want it.
He said that a staying of proceedings can create uncertainties and has the potential for tactical games-playing and so should not ordinarily be ordered. He recognised that the requirements of ADR and sensible case management to lead up to a prompt trial date can sometimes be at odds and that at a CMC, when there is a clash, sensible case management must come first.
On its face, this is disappointing, as ordering a stay is something that the Court can do to encourage mediation and it should not ordinarily increase costs. Nonetheless, this is only a first instance case management decision, confined to its facts. It does not give carte blanche to those who refuse to agree to mediate, because they do not have enough information, as the Court will still be able to penalise them in costs at the end of the case, if this was unreasonable, even without a stay. The Judge emphasised that his decision was not designed to undermine the importance of ADR or to detract from Halsey sanctions for unreasonable refusal to mediate.