Margarette Macaulay v Harold Brady

• Jurisdiction: Jamaica
• Judge: P.A. Williams. J.
• Judgment Date: 28 February 2014
• Neutral Citation: [2014] JMSC Civ 33
• Docket Number: CLAIM NO. 2010 HCV04850
• Court: Supreme Court (Jamaica)
• Date: 28 February 2014

[2014] JMSC Civ. 33

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN CIVIL DIVISION

CLAIM NO. 2010 HCV04850

Between

Margarette Macaulay

Applicant/Witness

and

Harold Brady

Claimant/Respondent

and

Bruce Golding

Defendant/Respondent

IN CHAMBERS

Mrs. Ursula Khan and Mrs. Eileen Felix instructed by Mrs. Eileen Felix for the Applicant.

Mr. Gordon Robinson and Mrs. Georgia Gibson-Henlin instructed by Henlin Gibson Henlin for the Claimant/Respondent.

Mrs. Daniella Gentles-Silvera instructed by Livingston Alexander & Levy for the Defendant/Respondent.

Mediation — Claimant seeking to strike out defence alleging Defendant failed to participate in good faith — Mediator summoned to testify regarding Defendant's conduct and attitude at mediation — Mediator applying to set aside witness summons — Scope of confidentiality

P.A. Williams. J.

Factual Background

1 This application before the court has its genesis in an action for damages for libel commenced in October 2010 by Harold Brady, claimant/respondent, against Bruce Golding, defendant/respondent. It was referred to mandatory mediation pursuant to Part 74 of the Civil Procedure Rules. The mediation was held on April 14, 2011.

2 Mrs. Margarette May McCauley, the applicant, was the mediator the parties agreed should facilitate the process. The mediation report subsequently filed on April 26. 2011 indicated that the parties met but were unable to arrive at an agreement. The claimant/respondent has taken the view that the mediation process failed due to the conduct and attitude of the defendant/respondent which was interpreted as showing that he had no interest in participating.

3 The claimant/respondent filed an application on November 1, 2011 seeking to strike out the defence or alternatively for costs against the defendant. It is the contention that the defendant/respondent failed to participate in good faith at the mediation thereby causing it to breakdown. The defendant/respondent denied that he demonstrated any attitude or behaviour during the mediation to indicate that he did not intend to co-operate with or frustrate the mediation process.

4 The claimant/respondent, recognizing that the issue would now ‘centre narrowly’ on the defendant/respondent's conduct and attitude at the mediation, served a witness summons dated November 30, 2011 on the applicant. The summons commanded her attendance for the following reason:-

‘To testify in behalf of the claimant regarding the defendant's conduct and attitude at the mediation session held April 14, 2011 at the Dispute Resolution Foundation.’

5 On December 19, 2012 the applicant filed a notice of application for Court Orders seeking the following orders inter alia:-

• (1) The witness summons dated the 30 ^th of November 2011 served by the claimant on the applicant/witness on or about the 14 ^th day of December 2011, be set aside pursuant to Rule 33.3 (4) and (5) of the Civil Procedure Rules 2002 and amended.

• (2) The applicant/witness be awarded the costs of this application and those which will rise for attendances pursuant to the service of the said witness summons such costs to be paid by the claimant/respondent.

6 It is perhaps useful to firstly make note of some of the rules governing the mediation process. It is recognized that these rules are relatively new to our jurisdiction and, as Mr. Gordon Robinson submitted the mediation process can be regarded as one of the most important advances in the administration of justice as it can assist greatly in alleviating inordinate delays in the delivery of justice.

7 Part 74 of the Civil Procedure Rule deals exclusively with mediation, becoming a part of the Rules in September 2006. It has as its objective the following statement:-

74.1 This part establishes automatic referral to mediation in the civil jurisdiction of the court for the following purposes:

• (a) improving the pace of litigation

• (b) promoting early and fair resolution of disputes

• (c) reducing the cost of litigation to the parties and the court system

• (d) improving access to justice

• (e) improving user satisfaction with dispute resolution in the justice system; and

• (f) maintaining the quality of litigation outcomes —

through a mediation referral agency appointed to carry out the objects of this part.

8 Mediation is defined at CPR 74.2 (1) as follows:-

‘Mediation’ refers to a dispute – resolving process in which a neutral third party called the ‘Mediator’ facilitates and co-ordinates negotiations by parties in a dispute with a view to resolving or reducing the extent of the dispute.’

9 At CPR 74.10 the conduct of the mediation is outlined:

CPR 74.10 (2) The parties and their attorneys-at-law shall, at the first mediation session, execute an agreement absolving the mediator from any liability arising out of or relating to the mediation.

(3) A mediator may:

• (a) assist the parties by meeting with them together or separately to encourage and facilitate discussion between them in an attempt to reach a mutually acceptable resolution of the dispute or any part of it; or

• (b) adopt any procedure that is just to the parties to facilitate and encourage an early settlement of one or more issues in dispute between them.

(4) Mediation is a confidential process such that:-

• (a) discussions during the mediation and documents prepared solely for the purposes of mediation are confidential and may not be disclosed in any other proceedings or context;

• (b) no party or attorney-at-law representing a party may at any time subsequent trial or hearing of the claim refer to any matters disclosed by them or any other party at the mediation;

• (c) the mediator may not disclose to any other person or be required to give evidence about any matters disclosed by any party at the mediation;

• (d) the mediator shall not be required to provide consultation notes, evidence or an opinion, touching on the subject matter of the mediation in any proceedings; and

• (e) the mediator's report shall be absolutely privileged, unless it becomes an order of the court pursuant to rule 74.12

• (f) Nothing in this rule 74.10 (4) is intended to affect any duty to disclose under any other rule.

10 For the purposes of the matter under consideration, there are other provisions of this part of the Civil Procedure Rules that needs be noted. Firstly it is to be borne in mind that all parties along with their attorneys-at-law (where represented) must attend all mediation sessions per CPR 74.9 (1). Flowing from this, one of the sanctions provided concerns non-attendance at the sessions CPR 74.14 (5) provides:-

Where the mediators report indicates that the claimant party did not attend to mediation, the court may, on the application of a defendant party, strike out the claim.

CPR 74.14 (6) provides:-

Where the mediators report indicates that a defendant party did not attend the mediation, the court may on the application of a claimant party strike out the defence and enter judgment against that defendant.

11 It is to be further noted that there is a general provision speaking to the event of a party, an attorney-at-law representing a party or a mediator failing to comply with any of the requirements of this Part. In that event, any other party may apply to the court and the result of such is in CPR 74.14 (4) which provides the following:-

The Court may make such order and impose such sanctions as may be permitted under these rules, including, but not limited to costs.

12 Significantly also it is noted that there is provision for relief from sanctions at CPR 74.15 (2) which provides:-

The court may grant relief if it is satisfied that:

• (a) the failure to comply was not intentional

• (b) there is a good explanation for the failure or

• (c) the party in default had generally complied with all other relevant rules, practice directions, orders and direction.

CPR 74.15 (3) states

In considering whether to grant relief, the court must have regard to:

• (a) the interests of the administration of justice;

• (b) whether the failure to comply was due to the party or that party's attorney-at-law;

• (c) whether the failure to comply had been or can be remedied within a reasonable time;

• (d) whether the trial date or any likely trial date can still be met if relief is granted; and

• (e) the effect which the granting of relief or not would have on each party.

13 The next matter to be borne in mind is the mediation agreement which the parties and their attorneys-at-law are mandated to sign at the commencement of the session. It expressly sets out what is expected from the mediation process, the requirement of disclosure and confidentiality, the role and liability of the mediator and the fees to be paid.

14 Mediation, in the agreement, is defined as a consensual process in which an impartial third party, with no power to impose a resolution, works with the disputing parties to help them explore and if possible reach a voluntary and mutually acceptable resolution of some or all of the issues in dispute. Further it states that the parties will discuss the issues with the mediator individually or together with a view to participating in good faith to achieve settlement.

15 On the issue of disclosure and confidentiality it starts by providing that throughout the mediation the parties agree to disclose material facts, information and documents to each other and to the mediator. Consequent on this, the agreement goes on to stipulate that ‘either during or after the mediation, no party will call the mediator as a witness for any purposes whatsoever. No party will seek access to any documents prepared for or delivered to the mediator in connection with the mediation, including any records or notes of the mediator.’

16 One other...