Enforcement by the court

Shirayama Shockusan Co Ltd and others v Danovo Ltd ChD TLR 22 March

After the claimants had refused to accede to the defendant’s suggestion that their dispute should be mediated, the defendant applied for an order that the Court direct that the parties pursue alternative dispute resolution. The Court exercised its jurisdiction under CPR rule 1.1 to order that mediation be attempted, not withstanding the unwillingness of the claimants to do so. However, preparation for the mediation came to a halt when the defendant learned that a representative of the claimants, Mr Masakuzu Okamato, would not be in attendance and the claimants had authorised others to be present in his place. The defendant contended that the presence of Mr Okamato was essential for a meaningful dispute resolution and accordingly applied for a stay of the proceedings until Mr Okamato had attended a mediation hearing. The application was refused. Although the Court had jurisdiction to order mediation between the parties and to render that mediation effective by ordering that the parties were adequately represented, it could not order that a particular person attend, especially where that person was a non-party to the proceedings. Moreover, if a stay were imposed on a claim pending mediation, thereby stopping a party going to court, it would bring a tension between a party’s right to access to the court on the one hand, and a wider public interest in making the best use of the court’s time on the other. A stay of proceedings in the instant case would potentially engage article 6 of the European Convention on Human Rights, since the stay would be imposed indefinitely and independently of the main proceedings.