COURT OF APPEAL ENCOURAGES LITIGANTS TO GET INTO GEAR ON LISTS OF ISSUES AND SUGGESTIONS FOR MEDIATION

June 2, 2021 · by · in Appeals, Mediation, Mediation & ADR

In  Gregor Fisken Ltd v Carl [2021] EWCA Civ 792 the Court of Appeal made observations about two issues: the drafting of a list of issues; the failure to consider mediation.

“It appears that the list of issues agreed by the parties in this case was produced as a result of a trawl through the pleadings, picking up every point where there was a dispute between the parties. That is not in general likely to be a helpful approach and was not in this case”

“Strong encouragement from the court to consider mediation merits careful consideration and is not simply to be ignored or rejected out of hand.”

THE CASE

The Court was considering an appeal relating to ownership and delivery up of the gearbox of Ferrari 250 GTO, which had cost US$44 million. There were issues with the substantive appeal, with the appellant having a change of mind after the conclusion of the hearing.

 

    1. In a yet further twist, we were informed by Mr Shepherd in an email sent after the conclusion of the hearing that the Appellant’s position was now (in summary) that (1) the Respondent is not entitled to enforce the contract, so that the appeal should be allowed and the gearbox should be returned to him; (2) alternatively, if the Respondent has standing to sue, we should hold that the Respondent repudiated the contract so that specific performance was not available; and (3) in the further alternative, if we should decide that the contract had not been repudiated and title to the gearbox had passed to the Respondent, we should order the Respondent to make the payment of US $500,000. Mr Shepherd volunteered to take responsibility for this volte face, suggesting that “I may have misunderstood my client’s instructions in answer to the question”, but I would not readily accept that an experienced leading counsel had misunderstood instructions on a specific point raised by the court as to the client’s objective in bringing this appeal.
  1. This is all very confused and unsatisfactory. It is not too much to expect of any appellant that it will know what it is asking this court to do. Unless that is made clear, there is a risk that the parties’ submissions will pass in the night and any prospect that they may be able to resolve their differences will be remote.

 

THE COURT’S OBSERVATIONS ON PROCEDURE: LIST OF ISSUES AND FAILURE TO CONSIDER MEDIATION

The Court also had something to say about the way in which the list of issues had been prepared and the failure to consider mediation.

The List of Issues
    1. It appears that the list of issues agreed by the parties in this case was produced as a result of a trawl through the pleadings, picking up every point where there was a dispute between the parties. That is not in general likely to be a helpful approach and was not in this case. Nor is it in accordance with the Circuit Commercial Court Guide, which provides at para 6.11 that “the list of issues is intended to be an agreed record of the principal issues of fact and law arising in the case” and, as such, is a key document for case management purposes. I would emphasise the word “principal”. I would draw attention also to the more detailed provisions set out at para D6.1 of the Commercial Court Guide, which also make clear that “the list should identify the principal issues in a structured manner, such as by reference to headings or chapters. Long lists of detailed issues should be avoided, and sub-issues should be identified only when there is a specific purpose in doing so”.
    1. As these provisions explain, the list of issues is intended to be the servant of good case management. There is a danger, not altogether avoided in this case, that rigid adherence to the terms of an unduly detailed and unstructured list will obscure rather than reveal what the case is really about. At the case management conference stage when the list of issues has to be prepared by the parties and approved by the court, the court has little choice but to rely heavily on the co-operation of the parties to provide a useful list. But judges should not feel fettered by the list of issues agreed at this stage if, as the case develops, it becomes apparent that it is not serving its purpose.
Mediation
    1. I have already observed that it would have been in the interests of both parties, if they were unable to resolve matters themselves, to have engaged the services of a skilled mediator at an early stage, and before this dispute escalated to court proceedings. When giving permission to appeal to this court I observed that:
“The case does not fall within the [Court of Appeal] pilot scheme for mediation, but the parties are strongly encouraged to consider attempting to resolve their dispute by mediation.”
  1. When we asked Mr Shepherd what steps had been taken in the light of this observation, his answer was succinct. He told us that the answer was “none“. When we asked Mr Hooper the same question, he told us that in view of Mr Carl’s failure to respond to settlement offers in the past (including a Part 36 offer which had been beaten at the trial), it was not thought worthwhile to pursue this suggestion. This is highly unsatisfactory. Strong encouragement from the court to consider mediation merits careful consideration and is not simply to be ignored or rejected out of hand. Also unsatisfactory is the way in which Mr Carl’s case has changed during the hearing of the appeal. I would invite submissions as to the consequences which should follow.
Tags: , ,