This decision of Mr Justice Twomey in V Media Doo v Techads Media Ltd[1], delivered in July 2025, gives a strong reminder to practitioners of their pursuant obligations to the Mediation Act 2017 (the 2017 Act), and provided useful guidance to parties engaged in litigation as to the Court's interpretation of the 2017 Act. While the Court’s encouragement of mediation is welcomed, any failure by solicitors to properly advise clients on mediation could expose them to professional negligence claims.
The decision
Under s14(1) of the 2017 Act, solicitors must advise clients to consider mediation and explain its benefits before issuing proceedings This advice must be confirmed by a statutory declaration, which accompanies the original documents. Here, the Court considered whether hearings should proceed without proof that this declaration was signed, to ensure that hearings are a heard in compliance with the 2017 Act.
The Court specifically focused on s14(3) of the 2017 Act, which states that a court must adjourn a hearing if the proceedings were issued without the accompanying statutory declaration. It went further, holding that courts should refuse to hear a case unless there is evidence that the plaintiff received the required advice on mediation. This, in turn, raised the question of whether a court must seek evidence that a plaintiff was duly advised to consider mediation instead of litigation, before the court will hear the action. Here, the Court held that the only logical answer was 'yes', as s14(3) is mandatory in nature.
In this instance, the plaintiff attempted to rectify the omission by later providing the Court with the declaration. However, the Court ruled that this could not retrospectively cure the breach of the 2017 Act.
The Court went on to stress the usefulness of the "reality check of mediation", noting that the 2017 Act tried to ensure that a plaintiff's claim has been subjected to an independent assessment by an objective mediator, before it's too late. They noted that mediation will usually result in the plaintiff receiving an assessment of the flaws and merits not only of their own claim, but also their opponent's.
Implications for insurers
This judgment is expected to act as a strong reminder to plaintiffs and may encourage earlier engagement with mediation, ideally before proceedings are even issued. Following Mr Justice Twomey’s decision, courts may apply greater scrutiny to compliance with the Mediation Act 2017 prior to hearings commencing.
The trend toward mediation for resolution of disputes remains positive. We continue to see high-value, complex disputes resolved through mediation rather than full trials, which significantly reduces costs compared to full defence of a claim and ultimately, a full trial. This benefits both defendants and insurers by lowering exposure to legal fees and potential costs awards to successful plaintiffs.
When read alongside the earlier decision of Byrne v Arnold[2], where the plaintiff was penalised in costs due to a failure to comply with the 2017 Act, this ruling reinforces the seriousness of procedural compliance. For insurers, it the heightens the risk of professional negligence claims against solicitors who fail to comply with the procedural requirements of the 2017 Act. While the extent of non-compliance across firms remains unclear, it is likely that more such cases will come before the courts.
The failure to advise appropriately may come with considerable costs implications for a plaintiff, who may not be awarded the level of costs that would otherwise be expected. In turn plaintiffs may that seek to recover these losses through professional negligence claims against their solicitors, a risk that insurers should be alert to.
For any advice on the Mediation Act 2017, get in touch with our team for a further discussion.
[1] V Media Doo & First Click Marketing Operations Management Limited v Techads Media Ltd [2025] IEHC 430
[2] Byrne v Arnold [2024] IEHC 308
