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Mediation ‘not saving huge amount in costs’ – SC

A conference on professional negligence and liability has heard that stronger pre-action protocols and a wider pool of experts are needed to settle professional-negligence cases more efficiently in Ireland. 

Sara Moorhead SC told the event that, while mediation was a satisfactory experience for many parties, it was not saving a huge amount in costs, and could save more. 

The conference (5 June) was hosted by law firm Holmes, together with the Professional Negligence Lawyers’ Association (PNLA), and examined the evolving landscape of professional-negligence claims in Ireland and Britain.

The event brought together legal, insurance, and business leaders to discuss strategic responses to emerging regulatory, economic, and litigation trends, particularly within the construction sector. 

It heard that pressures from inflation, tariffs, and geopolitical uncertainty were leading to greater consolidation through mergers within professional sectors and significantly affecting the volume and scope of professional-negligence claims. 

‘Significant increase’ in claims 

Among the speakers was Minister for Justice Jim O’Callaghan, who said that a significant increase in professional-negligence claims in recent years had positive and negative aspects. 

It was positive, he said, that professionals could now be questioned and held to account, but they could also be exposed to unmeritorious claims. 

The minister told the conference that, although court processes were now quicker, litigation still took too long, and there was a need to resolve disputes at an earlier stage. 

Lawyers, the minister said, were “doing a disservice” to clients if they did not actively seek to encourage them to engage in alternative methods of dispute resolution. 

Small pool of experts 

The event heard that professional-negligence claims in the construction sector could be particularly “tricky”, with only a small pool of experts available in Ireland. 

Sara Moorhead SC said that gathering reports in such cases seemed to take “forever”. 

“You find that reports are arriving up to two to three weeks before the trial in prohibitively expensive actions,” she said, adding that meetings of experts earlier on would be of great benefit. 

Moorhead argued that there was a need for “really strict” system of pre-action protocols, in which judges were “trained not to take nonsense”. 

Without such a system that was “meaningful, with consequences”, and encouraged parties towards mediation or arbitration, she said, “we’re going to continue to have a difficulty”. 

Clinical negligence 

Along with other speakers at the conference, she welcomed a recent practice direction from the High Court on clinical-negligence cases. 

Moorhead said that there were some “extraordinary” delays in providing expert reports in such cases, which was a source of aggravation for plaintiffs. 

She also told the conference that mediation efforts could sometimes be held up when parties, often public bodies, did not have the necessary authority to agree a settlement. 

The senior counsel pointed out that, in Britain, many small disputes could be settled through digital mediation, adding that this would require “significant investment” in digital services to enable this to take place in Ireland. 

Landmark British case 

She referred to a landmark British case, Churchill v Merthyr Tydfil County Borough Council, in which the Court of Appeal held that a plaintiff could be ordered to engage in mediation. 

Moorhead said that, while developments such as the Mediation Act 2017 meant that Ireland was moving in this direction, she still believed that people should not be compelled to go to mediation. 

The SC added that, in any event, those that were unwilling participants in the process were less likely to engage meaningfully.