Mediation Ordered over the Defendant’s Objection at the Pre-Trial Review

On 21 November 2024, Mr Justice Miles ordered the parties to a trade mark dispute to mediate during December 2024, over the defendant’s objection and with trial imminent. The decision did not change the law. It applied Churchill v Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416 and the amended Civil Procedure Rules.

The Facts

The dispute arose from football kit. The claimants own the Superdry brand. The defendant runs the commercial operations of Manchester City Football Club. At paragraph 2, Mr Justice Miles described the core issue as whether branding on players’ kit would be seen “as branding denoting the Superdry brand or as branding denoting the defendant’s sponsor, Asahi Super ‘Dry’ 0.0% lager.” The claims were for trade mark infringement and passing off, as paragraph 26 records.

The Proceedings

Those claims proceeded in the Shorter Trials Scheme. The judgment does not record the date on which the proceedings were brought. On 21 November 2024, Mr Justice Miles gave judgment at the pre-trial review. At paragraph 28, he turned to “an application by the claimants for an order for compulsory mediation before the trial.” That application raised one question. It was whether the court should order mediation over one party’s objection shortly before trial. The defendant accepted that the power existed. At paragraph 35, however, its counsel submitted that mediation should be ordered only where it had a realistic prospect of success, and that both parties wanted a judicial ruling. At paragraph 37, he added that the application was very late.

The Judgment

Having weighed those submissions, Mr Justice Miles granted the application. At paragraph 43, he held that he “should order the parties to mediate with a view to seeking, if possible, to resolve the dispute between them”. The mediation was to take place during December 2024, and the parties were to report its outcome to the court.

His reasons answered each objection in turn. At paragraph 38, Mr Justice Miles observed that “everything would be up for grabs at a mediation, including the form of representation of any branding on the relevant kit, timing and money.” At paragraph 39, he accepted that lateness had some force, but the pleadings and witness statements had made each side’s case clear. At paragraph 40, he rejected the submissions that a mediation “has low prospects of success and that adjudication by a court is necessarily required.” He said that “The purpose of mediation is to remove roadblocks to settlement.”

The principle that emerges is plain. A party’s objection, failed negotiations and the nearness of trial do not of themselves bar an order for mediation. Each is weighed with the other considerations. On 13 January 2025, the parties notified the court that they had settled, as the postscript at paragraph 44 records. The judgment does not disclose the terms or state whether the mediation took place.

Key Takeaways

That principle rests on the framework set by the Court of Appeal. On 29 November 2023, the Court of Appeal held in Churchill, at paragraph 74(ii), that the court “can lawfully stay proceedings for, or order, the parties to engage in a non-court-based dispute resolution process”. The order must not “impair the very essence of the claimant’s right to proceed to a judicial hearing” and must be proportionate. On 1 October 2024, the Civil Procedure (Amendment No. 3) Rules 2024 came into force. Rule 3.1(2) now empowers the court to “order the parties to engage in alternative dispute resolution”. Mr Justice Miles noted both developments at paragraphs 29 and 30.

Against that framework, the decision is an application of the law, not an extension of it. Mr Justice Miles did not rule whether a realistic prospect of success is a precondition. He answered the defendant’s submission on the facts. The order required the parties to mediate. It did not require them to settle.

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