Consultation Paper on Alternative Dispute Resolution - Law Reform ...

Superior Courts (Competition Proceedings) 2005 36 and section 15 of the Civil
Liability and Courts Act 2004.
7.29 In the following case study, Nesselside Builders Ltd. v Carlow County
Council, a potentially expensive civil action was resolved following mediation,
which was advised by Kelly J under the 2004 Rules. 37
Case Study: Mediation in the Commercial Court
Nesselside Ltd had all but completed a small part of a major road
development in County Carlow. It then transpired that the Council did not
own a small piece of land linking the Nesselside development to the main
development. This small parcel of land was in fact owned by a person called
Madden. Nesselside initiated an action requiring the Council to provide
access to the land and to initiate a compulsory purchase order for it against
the owner. The claim also sought damages for alleged breach of contract,
malfeasance in public office and fraudulent misrepresentation. Kelly J
advised the parties to consider mediation. The mediation was successful and
the case was withdrawn from the Commercial Court list.
7.30 Mediation has also been recommended and attempted in many other
cases in the Commercial Court. 38 It is important to note that mediation can
assist the parties in clarifying the issues and gaining a greater understanding of
the nature of the dispute, even if a settlement does not result.
7.31 By actively selecting cases which are believed to be appropriate for
resolution by ADR, the Commercial Court has, on its own initiative, increased
the awareness and uptake of mediation in such cases. The Commission very
much welcomes the introduction of ADR in the Commercial Court, but it is
important to note that given the €1 million jurisdictional threshold involved, most
commercial disputes will not qualify for inclusion on the Commercial Court‘s list.
In this respect, it has been suggested that ADR must be promoted for the
resolution of commercial disputes in small and medium-sized businesses. As
certain commentators have noted:
36 SI 130 of 2005.
37 Pender ―Roadway dispute is settled‖ (27Feb. 2008) The Nationalist. Available at
http://www.carlownationalist.ie/news/story/?trs=mhmhqlkfmh&cat=news.
38 Further examples of cases which were adjourned for mediation and resulted in
settlement through mediation include: Mandraki Associates Ltd v Shell
International Petroleum Company Ltd Record No.2005/4283P, HSBC Bank Plc v
Lillis Record No.2005/3444P and C & C (Ireland) Ltd v Societe Anonyme des
Eaux Minerales d‘Evian. Record No.2005/3718P. See Dowling The Commercial
Court (Thomson Round Hall 2007).
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