Permission to appeal granted where trial arguably unfair as a result of judge acting as "mediator"

In a short judgment dated 11 December 2012 which is yet to be formally published, the Court of Appeal granted a claimant permission to appeal on the basis that his trial was arguably unfair.  The main ground of the claimant's appeal in Watson v Sadiq and another [2012] EWCA Civ 1817 was that he had been put under undue and inappropriate pressure by the trial judge during the course of the trial to settle the matter through negotiation with the defendant, which resulted in him settling on unfavourable terms and being denied a fair trial. David Phillips, a professional development lawyer in London, and CEDR accredited mediator, reviews this case.

Background

The claimant and defendant were engaged in a commercial property business between 2001 and 2008, when they fell out and their working relationship ended.  The case concerned the nature of their working relationship and whether the defendant owed money to the claimant in respect of one particular property.  The matter eventually settled on the fourth (and final) day of trial, resulting in a consent order in the form of a Tomlin schedule.  Although the consent order was signed by all parties, including the claimant (who represented himself throughout) the claimant subsequently sought to have the order set aside on the grounds that he had been "browbeaten" into accepting its terms by "unfair and improper judicial conduct". The claimant alleged that the trial judge had in effect acted as a mediator to try and resolve an impasse in negotiations between the parties, but in doing so had put the claimant under duress to the extent that he was deprived of a fair trial.  He sought permission to appeal to the Court of Appeal.

Court of Appeal decision

Lloyd LJ, granting permission to appeal, noted that the trial judge had "quite understandably" taken the view at an early stage that the case ought to be settled by negotiation, rather than a court deciding the rights and wrongs of the matter "in minute detail". Where the judge may have erred, however, was in going beyond "exhorting or commending" the desirability of settlement and actually stepping into the negotiation process in an attempt to break deadlock.  In doing so he may have stepped away from his proper judicial role and in effect acted as "a mediator, and for that matter a mediator who did not abide by the normal rules and processes and procedures of mediation".  As a result there appeared to be a compelling argument to be tested in the full appeal that the trial was not conducted fairly or properly.

Comment

This case is unusual in a number of respects. First, the claimant was seeking to appeal a consent order on the grounds that he had agreed to its terms under duress.  Secondly, and most notably, the alleged "duress" in this instance came from the trial judge overstepping his judicial role and straying into the arena of inter-party negotiation.  The Court of Appeal referred to previous instances of trial judges straying beyond their judicial remit (notably Jones v National Coal Board [1957] 2 QB 55) but noted that such cases were generally limited to judges intervening too much in cross examination or otherwise playing the role of advocate, rather than seeking to act as 'mediator' in a case in which they are sitting as judge. It is interesting to consider what redress, if any, the claimant would have, had the pressure to settle come in the course of a "genuine" mediation, perhaps from an overly evaluative mediator. In such cases an unrepresented party might feel under extreme pressure to settle, despite the unfavourable nature of the terms. (In this case the claimant was unrepresented, a fact noted by the Court of Appeal, which may well have influenced the outcome). In this context it is worth noting Lloyd LJ's reference to the "normal rules and procedures" of mediation, since one of the key features of mediation is the absence of fixed rules or procedures, which puts great flexibility in the hands of the parties and the mediator.

Finally, this case highlights the Court of Appeal continuing to maintain the long established position that whilst the courts of England and Wales will encourage mediation where appropriate, they will stop short of ordering or forcing a party to settle.  It also acts as a reminder of the benefit of effective mediation advocacy in reaching an acceptable settlement and the importance of the adage that "nothing is agreed until everything is agreed".