29 Apr 2013
Misusing Halsey in the name of press freedom?
by Tony Allen
Solicitor, Mediator and Senior Consultant to CEDR
It came as something of a shock to read David Pannick QC’s article an ill-thought out late-night provision in The Times Law section on 11 April citing “a 2004 case” which established that for the State to order mediation is a breach of the right to a public trial conferred by Article 6 of the European Convention on Human Rights. He was quoting counsel’s opinion given, it seems, by Antony White QC and a colleague to The Times and other papers to underpin their challenge to the Government’s proposals for Press regulation. The reference is clearly to Halsey v Milton Keynes NHS Trust, and while this article is not going to enter the controversy about Press regulation, it is going to challenge, yet again, the assertion that Halsey establishes what David Pannick and Antony White seems to think. It has been bad enough to correct this false assertion in the mediation world, where misreading of Halsey has bedevilled the development of mediation. For it to be applied inaccurately in another significant legal sector in a way that assumes unquestioningly that this is right is startling and troubling, as it risks perpetuating this damaging myth about what Halsey means more widely.
There is a pretty clear history available to show why this view is wrong.Firstly, any view expressed by the Court of Appeal in Halsey about ordering mediation was obiter, that is (bearing in mind that we are not supposed to use even really useful and economical Latin phrases) an expression of opinion which is not binding because it did not deal with the facts at the heart of the litigation. Halsey was about whether a costs sanction should be imposed on a successful party who refused an inter-party offer to mediate: no court order to mediate was ever made. The discussion about the propriety of ordering mediation in Halsey at all was apparently introduced on the initiative of Lord Lester of Herne Hill QC on behalf of the Law Society and I have certainly been at a public meeting in which an employee of the Law Society said that he was instructed not to take the point by the Law Society. In a speech to a Chartered Institute of Arbitrators’ symposium on mediation in October 2012 Lord Dyson, who gave the judgement of the court in Halsey admitted:
What I would now say, however, is that ordering parties to mediate in and of itself does not infringe their Article 6 rights. I rather regret, (and I wasn’t alone, my two colleagues were with me) that I was tempted by the Law Society to embark upon something which it was unnecessary to embark upon, and venture some views upon Article 6.
Interestingly this passage was somewhat edited by the time it reached the judicial speeches website.I will return to that speech later. But one of those colleagues, Sir Alan Ward, recently reflected further in his judgment in Wright v Michael Wright Supplies Ltd on what he called (not entirely accurately, I would argue) the “rule” in Halsey, citing it as:
“It seems to us that to oblige truly unwilling parties to refer their disputes to mediation would be to impose an unacceptable obstruction on their right of access to the court.” Was this observation obiter? Some have argued that it was. Was it wrong for us to have been persuaded by the silky eloquence of the’ éminence grise’ for the ECHR, Lord Lester of Herne Hill QC, to place reliance on Deweer v Belgium?”
Sir Alan then refers to the first extra-judicial public criticism made of that aspect of Halsey (there was plenty of non-judicial criticism of it on this point, including from me!) by Lord Clarke (then MR) in a speech to the Civil Mediation Council conference in 2008, later published in (2008) Vol 74 Arbitration 4, where he said, after reviewing the effect of Deweer v Belgium:
Does mediation require parties to waive their right to a fair trial? The answer is surely No.Mediation and ADR form part of the civil procedure process. They are not simply ancillary to court proceedings but form part of them. They do not preclude parties from entering into court proceedings in the same way that an arbitration agreement does. In fact all a mediation does is at worst delay trial if it is unsuccessful and it need not do that if it is properly factored into the pre-trial timetable.If the mediation is successful, it does obviate the need to continue to trial, but that is not the same as to waive the right to fair trial.If it were, any consensual settlement reached either before or during civil process could arguably amount to a breach of Article 6, which clearly cannot be the case…..What I think we can safely say though, without prejudicing any future case, is that there may well be grounds for suggesting that Halsey was wrong on the Article 6 point.
Lord Phillips of Worth Matravers too commented in a speech to the Indian Judiciary in 2008 that the comments in Halsey about ordering ADR “were strictly obiter”.
Lord Dyson’s 2011 change of heart in principle about mandating mediation (though never conceding it was a good idea in practice) was based on two more pieces of evidence. Firstly, he noted the EU Directive, implemented here in May 2011, Article 5.2 of which reads:
This Directive is without prejudice to national legislation making the use of mediation compulsory or subject to incentives or sanctions, whether before or after judicial proceedings have started, provided that such legislation does not prevent the parties from accessing their right of access to the judicial system.
Of course Italy has now implemented mandatory mediation legislation.
Secondly he noted the ECJ’s decision in Alassani v Telecom Italia, where the European Court upheld a decision to decline to hear a case because a mandatory mediation provision had not been pursued first. In commenting on it he observed importantly that the Italian provision in this case coerced parties to use mediation and not to settle. This is not a distinction that was drawn explicitly in Halsey.
His final view was that the Directive and Alassani:
would appear to have settled the Article 6 issue in a case where there is merely a preliminary step which the parties are required to go through which, if unsuccessful, would leave them free to litigate; and as I said earlier, I would no longer adhere to what I said about Article 6.
I would merely comment that a “preliminary step ” needs simply to connote “before trial” and not just “ before proceedings start”. While many cases could easily be successfully mediated before issue of proceedings, especially if pre-action protocols have been properly observed, a small proportion may require the procedural disciplines of disclosure and exchange of evidence to have been observed before advisers think it safe to try to settle. Even then, much can be saved by way of time and cost if a mediation is arranged later on but some months before a trial window opens.
So Halsey cannot be safely regarded as authority for the proposition that for a State (or presumably a judiciary) in an EU member state to order mandatory mediation is necessarily a breach of Article 6 as denying access to a public trial. What the Press barons make of the current regulatory proposals is a matter for them.They can still choose to mediate, so long as the outcomes are published, as it is perfectly possible to have a confidential discussion with a published binding outcome.