Three High Court Messages Every Litigator Should Hear – Mediation Compliance, Cost-Control and Commercial Pragmatism

On 28 July 2025 Mr Justice Michael Twomey delivered a significant judgment in V Media Doo & First Click Marketing Operations Management Ltd v TechAds Media Ltd. Although the case ultimately turned on breach-of-contract issues in the digital-marketing sphere, the first ten pages of the judgment, paragraphs 1-29 amount to a mini-treatise on the Mediation Act 2017 and the Court’s evolving intolerance of non-compliance. When read with Mr Justice Kennedy’s decision in Byrne v Arnold ([2024] IEHC 153) and the recent shareholder saga involving Web Summit, the message for practitioners is unmistakable: fail to engage properly with mediation – both procedurally and substantively – at your peril.

1. The V Media Ruling – Section 14 Re-Energised

Paragraphs 1-29 crystallise three core propositions.

1. Mandatory Gate-Keeping: Section 14(3) obliges a court to adjourn proceedings where the originating document is not accompanied by a statutory declaration confirming that the solicitor has advised the client to consider mediation. Twomey J holds that the duty is pro-active: a judge must satisfy herself/himself of compliance before embarking on the substantive hearing.
2. No “Box-Ticking”: The statutory declaration is not a formalistic exercise. The solicitor must give “comprehensive” advice – covering advantages, confidentiality, enforceability and adjournment risk – before issuing. Failure cannot be retrospectively cured, as the Court refused to treat a late-sworn declaration as a remedy.
3. Policy Rationale: The judgment situates Section 14 within a constitutional context: it is a legitimate, proportionate restriction on the right of access to the courts, designed to spare parties “tens/hundreds of thousands of euros” and years of stress. Litigation is to be the “option of last resort”.

The practical sting is found in paragraphs 15-18: Twomey J halted the hearing until proof of a timely declaration was produced, signalling that the Commercial Court list will now police Section 14 with real vigour.

2. Byrne v Arnold – The Precedent Underscoring the Point

In Byrne v Arnold (19 March 2024) Mr Justice Kennedy similarly questioned compliance “early in the hearing” and underscored that section 14 protects clients and serves the “public interest, discouraging unnecessary recourse to the courts”. Kennedy J described the Oireachtas intervention as “extraordinary”, given its incursion into the solicitor-client relationship.

Twomey J expressly leans on that characterisation. Together the judgments form a clear line of authority:

• Courts must enquire – silence on the point is no longer acceptable.
• Solicitors must evidence – a belated declaration may trigger adjournment, wasted costs and professional embarrassment.
• Parties must engage – refusal to mediate will reverberate in costs and strategic positioning.

3. Web Summit – Mediation’s Limits and Negotiation’s Value

The high-profile shareholder dispute between Paddy Cosgrave, David Kelly and Daire Hickey (five sets of oppression and fiduciary-duty proceedings) provides the perfect foil. Listed for a nine-week trial before Twomey J, mediation initially broke down despite the involvement of a London KC. Yet the pressure created by the looming trial timetable – and the Court’s consistent insistence on alternative dispute resolution – drove the parties back to the table. A confidential settlement, reported to involve a €20 million share buy-out, was ultimately implemented and the entire suite of actions was struck out.

Key lessons:

• Mediation can “fail forward.” Even an inconclusive session may narrow issues and set the stage for direct negotiation.
• Judicial expectations matter. Having a judge who has repeatedly proclaimed the economic sense of ADR concentrates minds.
• Opportunity-cost is real. Avoiding a nine-week evidential marathon saved vast sums, preserved corporate confidentiality and protected executive bandwidth.

4. Practical Takeaways for Litigators and Corporate Counsel

1. Audit Your Issuing Processes. Every fresh High Court (and Circuit Court) plenary writ should now trigger an internal checklist: Has the Mediation Declaration been sworn?  Is the advice letter on file?
2. Substantive Engagement, Not Lip-Service.  Judges are reading section 14 as requiring genuine discussion of mediation’s benefits – not a perfunctory paragraph in an engagement letter.
3. Early ADR Sets the Tone.  The Byrne and V Media judgments show that parties who ignore early opportunities risk adverse cost consequences and judicial irritation.
4. Leverage the “Fail Fast” Concept.  As Web Summit demonstrates, an unsuccessful mediation can still catalyse commercial settlement once parties have reality-tested their positions.
5. Educate Clients on Cost Trajectories.  Twomey J’s observation that eight-day Commercial Court actions can exceed €1 million in fees is now part of the public record. Use it when advising boards and C-suites.

5. Conclusion

The trilogy of V Media, Byrne v Arnold and Web Summit signals a decisive Irish judicial shift:

• Procedural compliance with the Mediation Act 2017 is non-negotiable.
• Courts will inquire; solicitors must certify; parties should mediate.
• Even when mediation stalls, the discipline of ADR can pave the way for value-preserving negotiation and spare litigants the ordeal of protracted trial.

For litigators, the call to action is clear: embed robust Mediation Act protocols, approach ADR with seriousness and harness the opportunity to deliver faster, cheaper and more confidential outcomes for clients. The Judges are watching.