A costly lesson

A recent decision underscores the High Court’s unequivocal stance on compliance with section 14 of the Mediation Act and highlights the significant consequences for those who fail to adhere to its provisions. Bill Holohan SC counts the cost

A recent judgment from Mr Justice Michael Twomey in V Media Doo & Anor v Techads Media Limited serves as a stark reminder to practitioners of the mandatory nature of the section 14 Mediation Act 2017 obligations regarding mediation advice and information.

Delivered on 29 July, this decision underscores the High Court’s unequivocal stance on compliance with section 14 and highlights the significant consequences for those who fail to adhere to its provisions.

The judgment echoes and, indeed, gives practical effect to the warnings issued by Mr Justice Liam Kennedy in Byrne & Ors v Arnold regarding costs implications for non-compliance. (See also, ‘Speak to me’, in the July 2024 Gazette.)

Justice Twomey’s judgment begins by setting out the foundational premise of the 2017 act – a significant restriction on the constitutional right of access to the courts, transforming litigation from a ‘first port of call’ to a ‘last resort’.

This fundamental shift is primarily driven by section 14, which places clear obligations on solicitors and, consequently, on the courts.

Key provisions of section 14

• Solicitor’s duty to advise – section 14(1): a solicitor must provide detailed mediation advice to his/her client before issuing proceedings. This advice must cover aspects such as the benefits and advantages of mediation over litigating, the confidentiality and enforceability of mediation agreements, and the requirement for a mediation declaration. This dictates the “very nature of the advice which must be given to a client”, described by Twomey J as a rare interference by the Oireachtas in the lawyer/client relationship.
• Mediation declaration – section 14(2): if proceedings are subsequently issued, a statutory mediation declaration must be sworn by the solicitor (confirming that this detailed advice was given) and must accompany the issue of legal proceedings, or follow before any further step is taken. Proceedings “cannot be, or should not be, issued without this mediation declaration”. Whether the Courts Service, in light of the judgment, starts to police the obligation remains to be seen.
• Mandatory adjournment – section 14(3): most significantly, Twomey J decided that a court must adjourn a hearing if the proceedings were issued without the accompanying mediation declaration. This is a mandatory obligation, meaning that the courts “must refuse to hear a case” if there is no evidence of the requisite advice having been given. The Oireachtas, he held, has removed the court’s discretion to adjourn in such circumstances.

Must a court, before commencing hearing, look for the declaration? Justice Twomey emphatically states that the only logical answer to whether a court must seek evidence of mediation advice is ‘yes’, because section 14(3) is mandatory (“shall”).

For the court to discharge its obligation to adjourn non-compliant proceedings, it “must first enquire as to whether or not there was an accompanying mediation declaration”, just as Kennedy J did in Byrne v Arnold.

This, Twomey J said, places a clear “onus on all courts” to ensure that comprehensive advice has been given before hearing a case. The rationale behind this legislative intrusion is clear – to protect prospective litigants from “tens/hundreds of thousands of euros in legal costs and the many years of
lost time and effort”.

 Not just ‘box-ticking’

The judgment makes it abundantly clear that compliance with section 14 is far from a mere ‘box-ticking exercise’.

The mandatory adjournment of a hearing due to the absence of a mediation declaration demonstrates the “level of its interference with the discretion of the court” and the seriousness with which the Oireachtas views this requirement.

Similarly, for solicitors, the detailed specification of required advice underlines that this is a substantive professional obligation, not a perfunctory task.

Justice Twomey highlights the “considerable onus on solicitors” to advise clients on the benefits of mediation, particularly the “very considerable financial benefits”.

Solicitors are tasked with explaining that legal fees for a successful mediation are likely to be a “fraction of the legal fees generated over, say, four years of litigation”.

This demands that solicitors act in a way that prioritises the client’s financial interests, even if it might seem counter to generating higher legal fees.

Reality check

A crucial insight from Justice Twomey’s judgment is the concept of mediation as an opportunity for a ‘reality check’.

Drawing on the Supreme Court case of Rosbeg Partners v LK Shield, Twomey J explains that courts apply “common sense and scepticism” to claims – a form of reality-checking.

Human nature often leads litigants to view issues solely from their own perspectives (with the benefit of hindsight) and to portray damages at their absolute height.

Mediation, he said, offers a critical pre-litigation assessment by an “objective and completely independent” mediator, allowing litigants to receive an assessment of side’s defence” – for perhaps the first time. This ‘reality-check’ is vital before claims become entrenched and “it is too late”.

The V Media case itself serves as a powerful illustration of these points. Here, the court “sought sight of the mediation declaration at the opening of the hearing”.

Counsel for the plaintiff confirmed that the proceedings had been issued without the declaration, in direct contravention of section 14(2). A subsequently sworn declaration could not “retrospectively remedy the breach”.

Justice Twomey noted that “there was no mediation and so, it appears, no reality check of the claims”. The sums claimed were substantial (plaintiffs, circa €2.5 million; defendant’s counterclaim circa €1.8 million), with estimated costs exceeding €1 million.

The outcome? The court found that “neither the plaintiffs, nor the defendant, are entitled to any award”, concluding that “the only winners in this case are the lawyers”.

This scenario, the judge remarked, “should, therefore, act as a salutary lesson for all plaintiffs” to undergo the reality check of mediation, reinforcing that litigation should be the “option of last resort”.

Implications for practice

The judgment in V Media directly aligns with, and amplifies, the warnings previously issued by Mr Justice Liam Kennedy in Byrne v Arnold, particularly regarding costs.

Key warnings and takeaways from these cases include:

• Mandatory adjournment and stays: Kennedy J had warned that failure to comply with section 14 “obliges the court to adjourn proceedings”. While in Byrne v Arnold, rising for a short period, he allowed time for compliance, but expressly stated: “If such a failure to comply with section 14 were to occur in future, the court may adjourn a hearing (at the plaintiffs’ expense) and stay the proceedings until the obligations had been discharged”. Justice Twomey’s actions in V Media confirm this: the court will check, and non-compliance means the hearing cannot proceed.
• Cost sanctions are real: Kennedy J, with Cassandra-like prophesy, specifically highlighted that “significant cost sanctions will be likely in any event” for non-compliance. In Byrne v Arnold, he considered a 15% penalty, but he imposed a 5% penalty on recoverable costs for the plaintiffs due to their solicitors’ failure to comply with section 14. He expressly warned that “courts may be less lenient in future”. That day has come. Justice Twomey’s V Media judgment, where millions were claimed and over €1 million in costs incurred, with no award for either party, powerfully demonstrates the financial perils of bypassing mediation.
• No excuse for urgency: Kennedy J, in Byrne, unequivocally stated that he could “not accept that the urgency justifies the default”, in compliance with the section 14 requirements, advising that the advice “should be given at the earliest opportunity”. Just weeks before the decision of Twomey J in V Media, Mr Justice Kennedy made an order, on 29 May 2025, in the matter of Colm Leahy v Pepper Finance Corporation (Ireland) when he adjourned proceedings that had commenced by way of an application for an injunction, due to the lack of a section 14 declaration – but more particularly ordered that the plaintiff had to pay the costs of all proceedings, up to that date, to the defendant.
• ‘Planting the seed’: even if immediate mediation is not successful, Kennedy J noted in Bryne v Arnold that, in providing the advice, “a seed is planted” that may lead to later settlement, emphasising that “most cases eventually settle before trial”.
• No ‘sign of weakness’: solicitors should not view proposing mediation as a sign of weakness. Kennedy J had stated that section 14 “offers an ideal basis for an overture, which can legitimately be presented as compliance with statutory and professional requirements”.

The decisions of Kennedy J and Twomey J are a critical reinforcement of the Oireachtas’s intent behind the 2017 act and the judiciary’s commitment to its enforcement.

The main conclusions are:

• Solicitors must internalise the fundamental shift: litigation is to be a last resort, not a first. The comprehensive mediation advice under section 14(1) and the accompanying declaration under section 14(2) are non-negotiable, statutory, and professional requirements.
• The consequences of non-compliance are severe and direct, including mandatory adjournment of proceedings, the potential for proceedings to be stayed at the plaintiff’s expense and, critically, significant cost sanctions. The 5% penalty in Byrne v Arnold, costs to date in Leahy v Pepper, and the “lawyers being the only winners” in V Media should serve as strong deterrents.
• Embrace mediation as a ‘reality check’: it offers an invaluable opportunity for objective assessment of claims, protecting clients from unnecessary costs and prolonged disputes, often leading to better outcomes than court intervention.

The clear message from the courts is that the judiciary will rigorously enforce the 2017 act. Compliance is not merely a procedural formality – it is a substantive obligation designed to protect clients, conserve judicial resources, and foster the earlier, cheaper resolution of disputes. Practitioners would be wise to heed these warnings, lest their clients incur prohibitive costs for litigated disputes that could have been resolved through mediation. 

LOOK IT UP

LEGISLATION:
· Section 14 Mediation Act 2017
LITERATURE:
· Bill Holohan SC, 'Speak to me', July 2024 Gazette, p26