By Bill Holohan Mediator, Solicitor & Senior Counsel. Member of Civil & Commercial Committee of the IPMO

Mr. Justice Twomey delivered judgement on 10 February, 2023 in the case of Sere Holdings Ltd v Health Service Executive [2023] IEHC 63 and said that the State should, at least, consider mediation in every dispute in which it is involved. He further concluded that litigation should be the last resort for the resolution of disputes in all cases and particularly in disputes involving State agencies.

The Court set out the following reasons in reaching these conclusions. It noted that:

• court hearings should be a last resort, for the simple reason that litigation is such an expensive way to resolve any dispute;
• it is the taxpayer who will have to pay the legal costs if a State agency loses and even, in some cases, if the State agency wins;
• High Court costs paid by the taxpayer, in the tens/hundreds of thousands of euro, will in many cases not be ‘proportional’ to the value or importance of the dispute;
• if State agencies resolved their disputes without litigation, it would mean that scarce court resources would be available for other citizens of the State to have access to justice; and
• a State agency does not have the financial incentive that most other litigants have to consider mediation. For individual and corporate litigants, the financial consequences of having to pay High Court costs are usually very much to the fore of their minds, since they will feel the effect in their pocket.

The Judge, at paragraph 82, also noted the approach in Australia that obliges a State agency to endeavour “to avoid, prevent and limit the scope of legal proceedings wherever possible, including by giving consideration in all cases to alternative dispute resolution processes where appropriate”.