MIDLAND & WESTERN CONFERENCE - ATHLONE. Drug Driving- The current position and the legislative changes effected by the Road Traffic Act, 2010

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1 MIDLAND & WESTERN CONFERENCE - ATHLONE Drug Driving- The current position and the legislative changes effected by the Road Traffic Act, 2010 Paper by Martin Dully BL 2 nd April 2011 Introduction The offence of intoxicated driving where the intoxicant is a drug other than alcohol or is a combination of alcohol and another drug is currently prosecuted as a summary offence under section 49(1) of the Road traffic Act 1961 as amended. The statutory provision provides as follows: A person shall not drive or attempt to drive a mechanically propelled vehicle in a public place while he is under the influence of intoxicating liquor or a drug to such an extent as to be incapable of having proper control of the vehicle An intoxicant is defined by section 49(1)(b) of the principal Act as inserted by section 10 of the 1994 Act as: alcohol and drugs and any combination of drugs or of drugs and alcohol. It is noteworthy that neither the existing legislation nor the 2010 Act which is yet to be brought into force in substance stipulates prohibited concentrations of drugs nor does it distinguish between legal and illegal drugs. [Section 3 of the 2010 Act does not alter the definition of an intoxicant]. It is surprising that there is so little reported case law on section 49 prosecutions given the evidential matters that arise so often. See Michael Sweeney v District Justice Mary Fahy and DPP [2009] IEHC 212 and Feidhlim Doyle v DPP a judgement of Kearns P. from November, (citation unattainable). These cases add little to an understanding of the elements of the offence and are ultimately decided on broad principles of Judicial Review. The elements of the offence Firstly, there must be evidence that the accused drove or attempted to drive a mechanically propelled vehicle in a public place Secondly, the accused must, while driving or attempting to drive be under the influence of an intoxicant to such an extent as to be incapable of having proper control of such a vehicle.

2 In the context of drug driving it is the final requirement which creates the greatest evidential difficult for the prosecution. As matters currently stand prior to the coming into force of the substantive provisions in the 2010 Act the prosecution must rely on the garda s evidence of his observations of the accused s physical condition and may also adduce evidence of the poor quality of the accused s driving prior to his apprehension, if witnessed. In addition the prosecution may seek to admit a certificate of analysis of a blood or urine specimen obtained from the accused following his arrest which has determined the presence of an intoxicant in the accused s specimen which may be introduced on its own or in addition to a certificate of analysis indicating a particular concentration of alcohol. The real difficulty for the prosecution is in establishing that the accused was so intoxicated as to be incapable of having proper control of the vehicle. Mere evidence of the consumption of an intoxicant or indeed evidence of intoxication simpliciter is insufficient to establish, of itself, that the degree of intoxication was sufficient to definitely establish to the requisite standard of proof in a criminal prosecution; that the degree of intoxication rendered the accused incapable of exercising proper control while driving. Generally garda evidence is of a subjective character based on observation of the accused, for example, dilated pupils or a manifest lack of coordination in movement due to drug intoxication such as to permit a judicial determination of the fact of incapacity. Experience suggests that Gardai receive little or no training in identifying drug induced intoxication. The problem in placing reliance on such evidence is that it may be evidence sufficient to justify an arrest based on a reasonable suspicion of guilt but insufficient to establish proof beyond a reasonable doubt. In other words evidence of reasonable suspicion is offered as evidence of conclusive guilt. Gardai are handicapped under the existing law in carrying out any form of pre arrest or post arrest coordination tests or examinations designed to determine incapacity. At present an accused can refuse to submit to any such test either pre or post arrest. An accused must be informed that such tests are voluntary. As a general proposition medical evidence of incapacity from a designated doctor is not relied upon in section 49(1) prosecutions. A designated doctor and nurse is, of course required, to attend at a garda station or a hospital for the purpose of participating in the obtaining of a specimen from an accused. It can be presumed that such persons, given their training and expertise, would be in a better position to offer opinion evidence as regards an accused s incapacity due to intoxication than gardai. In principle, they are entitled to give such evidence on the basis of their exposure to the accused in the course of their participation in the taking of a specimen see DPP v Kenny 1992, 2 I.R. at page 141. In Kenny Barron J held that a doctor who attended at a station for the purpose of obtaining a specimen following an accused s arrest for drink driving was entitled to give evidence as to his opinion regarding the accused s state of intoxication acquired whilst dealing with the accused and that his observations in that context were not protected by an accused s constitutional right to privacy. However there seems little doubt that a deliberate attempt to establish the nature of the accused s condition by subterfuge or questioning without the express permission of the accused would be unlawful.

3 Frequently the gardai will also rely on evidence of recent drug consumption by the accused (i.e. smell of cannabis in the vehicle), the accused s physical possession of drugs or the presence of drug paraphernalia in the vehicle in order to establish that the accused has recently consumed drugs. In addition the Gardai may rely on admissions from the accused prior to or subsequent to arrest of recent drug use. Mr. Justice O Flaherty in DPP V Cormack [1999] IESC 20 held that admissions made prior to a section 49(8) arrest by an accused relating to the fact and time of driving were prima facie admissible in evidence notwithstanding the fact the accused was intoxicated at the time of making them. Despite the decision in Cormack the Judges Rules should apply to any admission in relation to drug use and incapacity whether or not the accused has been cautioned, where a garda proceeds to question a subject as to his drug use after already forming a suspicion that the subject has committed an offence under section 49(1). Further concerns arise from the new long form of the custody records where an arrested person will now be questioned on arrival in the garda station about his recent alcohol or drug use. Presumably the purpose of such questions is to protect the interests, health and safety of the arrested person while in garda custody and is not regarded primarily as an investigative tool. A strong argument can be made that an accused s admissions of drug use in reply to the Member in Charge s questions under the Custody Regulations should not be admissible evidence against the accused in a drug driving prosecution. The evidential problems outlined above have been addressed in the 2010 Act. Section 11 of the Act provides as follows: (1) A member of the Garda Síochána, for the purposes of forming the opinion that a person in charge of a vehicle in a public place is under the influence of an intoxicant to such an extent as to be incapable of having proper control of the vehicle, if he or she considers it would assist him or her to form such opinion, may require the person to perform in the presence of the member or another member such impairment tests, in the manner indicated, in accordance with impairment test regulations, by the member or other member in whose presence the test is to be performed. (2) A member of the Garda Síochána in forming an opinion under subsection (1), where a test under subsection (1) is performed in the presence of another member, may take into account any advice or opinion given to him or her by the other member. 3) The Minister may prescribe the form of tests, indicating the manner and type of the tests, for the purposes of subsection (1). (4) A person who, without reasonable excuse, fails to comply with a requirement under subsection (1) commits an offence and is liable on summary conviction to a fine not exceeding 5,000 or to imprisonment for a term not exceeding 6 months or to both (5) A member of the Garda Síochána may arrest without warrant a person who in the member s opinion is committing or has committed an offence under this section (6) Section 1(1) of the Probation of Offenders Act 1907 does not apply to an offence under this section.

4 This is a remarkable provision. It is of interest to note that there are no express statutory preconditions to the lawful exercise of such a power as apply in the case of a preliminary breath test pursuant section 12 of the Road Traffic Act, 1994 [the contents of that section are largely restated with minor amendments in section 9 of the 2010 Act] On a strict interpretation of the section it is not even necessary for a garda exercising such a power to have formed a preliminary opinion that the proposed subject of the test has consumed an intoxicant. Thus, it is at least arguable, that such tests may be lawfully applied on a random basis on the singular justification that it would be of assistance to the garda in forming an opinion that an offence under section 49(1) [restated in section 4 of the 2010 Act] has been committed by the subject of the test. Nonetheless it is hard to imagine that the courts would approve the application of such tests where the test has been applied on a random or capricious basis without any particular suspicion of the consumption of an intoxicant. Particularly since a failure to comply with the requirement without reasonable excuse is made an express offence pursuant to section 11(4) of the 2010 Act. See DPP (Stafford) v Fagan [1994] 2 ILRM 349 decision. Section 11(3) provides that the Minister for Transport may prescribe the forms of impairment tests including the manner and type of such tests by regulation. The wording of the section pre supposes the promulgation of these regulations in advance of the coming into force of section 11(1). A recent article in the Irish Independent suggests that the regulations are imminent and that gardai are currently undergoing training by the Medical Bureau of Road Safety in the proper application of the tests. It has been speculated that among the tests stipulated will be a form of optical examination to ascertain pupil dilation in addition to standard coordination tests. Section 11 also envisages that such tests may be performed in the presence of another garda (presumably trained) and take into account any advice or opinion given to him by such other member. Section 11(5) provides a power of arrest in the event that the subject of the test fails or refuses to comply with the requirement. In this regard it should be noted that a person arrested for such an offence may be subjected, following arrest, to a requirement to provide a blood or urine specimen for evidential purposes [see section 12(1) of the 2010 Act]. Medical Examinations following arrest The 2010 Act provides a very important new power to the gardai in obtaining evidence of an intoxicant induced incapacity following arrest. Section 24 provides: (1) Where a person is arrested under a provision referred to in section 13(1) (inserted by section 1 of the Road Traffic and Transport Act 2006 ) of the Act of 1994 or section 12 (1) of this Part or is admitted to hospital in the circumstances referred to in section 15(1) of the Act of 1994 or section 14 (1) of this Part, a member of the Garda Síochána, at a Garda Síochána station or the hospital, as the case may be, may require the person to undergo a medical examination carried out by a designated doctor or designated nurse for the purpose of obtaining evidence that the person was, at the time of being arrested or the event, as the case may be, under the influence of an intoxicant as to be incapable of having proper control of a vehicle.

5 (2) A person who refuses or fails to comply with a requirement under subsection (1) commits an offence and is liable on summary conviction to a fine not exceeding 5,000 or to imprisonment for a term not exceeding 6 months or to both. (3) Where a designated doctor or designated nurse carries out medical examination of a person for the purposes of subsection (1), he or she shall make a written statement of the results of the examination. (4) A requirement under subsection (1) of a person admitted to hospital in the circumstances referred to in that subsection shall not be made unless a doctor treating the person has been consulted and it would not be prejudicial to the health of the person to make the requirement Furthermore section 25 provides that a written statement of the making of a requirement by a garda pursuant to section 24(1) is admissible evidence that the requirement was lawfully made subject to some statutory preconditions such as the service of the notice on the accused in advance of the hearing. Section 25(4) provides that the results of such a test as conducted by a doctor or a nurse are admissible by way of a written statement of the facts stated in it. The provision is drafted in such a way that the expression of an overall opinion of the degree of intoxication as opposed to a statement of the findings of specific tests may not be covered by the statutory presumption. The section is silent on the form and content of the medical examination and contentious issues will arise as regards the methodologies adopted by a doctor in conducting the medical examination. It is an offence to fail to submit to the medical examination and the requirement to submit also applies in the case of a requirement made in a hospital. Other issues may well arise as to the permitted extent or invasive nature of the examination conducted in any individual case. Currently failure to submit to medical examination appears to be a strict liability offence. There is no statutory defence of reasonable excuse (see next page). The provisions of section 24(4) may also result in difficulties for the prosecution in terms of proof at the trial. As indicated above section 24 applies to persons who may have been admitted to a hospital following a road traffic accident. Section 24(1) extends the power to make a requirement of such a patient to undergo medical examination for the purpose of establishing incapacity due to the consumption of an intoxicant. However section 24(4) prohibits the making of a requirement unless a doctor treating such a person had been consulted and has concluded that it would not be prejudicial to the health of such a person to make the requirement. Insofar as the treating doctor has to form an opinion the section may well require evidence from that doctor at trial as a precondition to establishing the validity of making such a requirement. It is not sufficient that a garda simply gives evidence of having sought and obtained such permission from the treating doctor. Such evidence is hearsay evidence that the doctor had formed the requisite opinion. It is noteworthy that a legislative provision which permits a doctor conducting the medical examination to give evidence by way of certificate or statement may require the treating doctor approving the making of requirement having to attend court as a necessary prosecution witness. The statutory defence to a charge of failing to comply with a preliminary and permanent

6 test under section 11 is expressed in two separate sections of the 2010 Act which appear on their face to contradict each other. Section 11(4) creates the offence of failing to comply subject to the proviso of having a reasonable excuse. Peculiarly section 22(4) states the following: In a prosecution for an offence under section 11 (4) for refusing or failing to perform a test, it is a defence for the defendant to satisfy the court that there was a special and substantial reason for his or her refusal or failure and that, as soon as practicable after the refusal or failure concerned, he or she complied (or offered, but was not called upon, to comply) with a requirement under the provision concerned in relation to the performance of a test On its face section 22(4) imposes a more onerous obligation on the accused in establishing a defence than the defence of reasonable excuse. In addition it creates a further requirement tha,t in order to avail of the defence, the subject of the test must have offered to comply with a requirement relating to some other impairment test requirement being made by the garda. I find it impossible to reconcile these two provisions but assume that it is the intention of the Oireachtas to differentiate between a situation where the subject of the test has flatly refused or failed to comply with the initial requirement made pursuant to section 11(1) and where the subject of the test has failed or refused to undergo a specific test having previously agreed to comply with the initial requirement. Even this benign, conjunctive and purposive construction of the two sub sections creates difficulties as it is difficult to understand why a person who has refused to comply with a requirement under s. 11(1) might be in a more advantageous position in terms of his defence than a person who has agreed to comply with a requirement but has refused to undergo a particular test. It is of even greater concern that an accused appears to have no defence based on reasonable excuse or a variant thereof for a failure to comply with a requirement of a medical examination for the purpose of ascertaining intoxicant induced incapacity in the hospital pursuant to section 24(2). It appears that it is the Oireachtas intention, subject to very limited exceptions, to create a strict liability offence notwithstanding the fact that there are a myriad of reasons as to why a person might reasonably refuse to undergo such an examination. [Such an approach is in line with recent Irish judicial decisions in other intoxicated driving cases; see DPP V Cormack [1999] IESC 20]. However recent European Courts of Human Rights decisions casts doubt on whether obliging arrested persons to undergo medical examination without a reasonable excuse exception may be in breach of the convention Other statutory provisions relevant to drug driving Section 14 of the 1994 Act includes the following little used provision relevant to drug driving:

7 Whenever a member of the Garda Síochána is of opinion that a person in charge of a mechanically propelled vehicle in a public place is under the influence of a drug or drugs to such an extent as to be incapable of having proper control of the vehicle, he may require the person to accompany him to a Garda Síochána station. A person who refuses or fails to comply with a requirement under subsection (1) shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding 1,000 or to imprisonment for a term not exceeding 6 months or to both A member of the Garda Síochána may arrest without warrant a person who in the member's opinion is committing or has committed an offence under subsection (2) Where a person is at a Garda Síochána station either pursuant to subsection (1) or having been arrested under subsection (3), a member of the Garda Síochána may there require the person either (a) to permit a designated doctor to take from the person a specimen of his blood, or (b) at the option of the person, to provide for the designated doctor a specimen of his urine, and if the doctor states in writing that he is unwilling, on medical grounds, to take from the person or be provided by him with the specimen to which the requirement in either of the foregoing paragraphs related, the member may make a requirement of the person under this subsection in relation to the specimen other than that to which the first requirement related Subject to section 23, a person who, following a requirement under subsection (4) (a) refuses or fails to comply with the requirement, or (b) refuses or fails to comply with a requirement of a designated doctor in relation to the taking under that subsection of a specimen of blood or the provision under that subsection of a specimen of urine, shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding 1,000 or to imprisonment for a term not exceeding 6 months or to both. Section 1 (1) of the Probation of Offenders Act, 1907, shall not apply to an offence under this section This section is of limited utility. In order to invoke the power the garda must have formed an opinion which would in itself have justified the arrest of the subject for an offence pursuant to section 49(1). In addition the section provides that a person who complies with the requirement is not under arrest. What is the purpose of this function? Is the subject of the requirement being detained? Are there any practical limitations or differences between how such a person can be treated in a garda station compared to someone who is under arrest? Does such a person enjoy the rights and protections of the Custody Regulations? Can such a person be placed in a cell or otherwise be placed under restraint pending the arrival of a designated doctor? In cases where the provision has been invoked and relied upon a practitioner should examine the C84 custody record,

8 in particular section B, the section dealing with the arrest or the detention. It is my experience that the custody record in such circumstances can demonstrate real confusion on behalf of the gardai as to whether the accused has complied with the requirement under section 14, has been arrested for a failure to comply with such a requirement under section 14(3) or has been arrested for an offence under section 49(1). The Medical Bureau of Road Safety and the Analysis of the Specimen Section 19 of the 1994 Act relates to the procedures at the Bureau regarding specimens. It states: As soon as practicable after it has received a specimen forwarded to it under section 18, the Bureau shall analyse the specimen and determine the concentration of alcohol or (as may be appropriate) the presence of a drug or drugs in the specimen. Where the Bureau receives 2 specimens of blood so forwarded together in relation to the same person or 2 specimens of urine so forwarded together in relation to the same person, it shall be sufficient compliance with subsection (1) for the Bureau to make an analysis of and determination in relation to one of the 2 specimens of blood or (as may be appropriate) one of the 2 specimens of urine. As soon as practicable after compliance with subsection (1), the Bureau shall forward to the Garda Síochána station from which the specimen analysed was forwarded a completed certificate in the form prescribed for the purpose of this section and shall forward a copy of the completed certificate to the person who is named on the relevant form under section 18 as the person from whom the specimen was taken or who provided it. In a prosecution for an offence under this Part or under section 49 or 50 of the Principal Act, it shall be presumed until the contrary is shown that subsections (1) to (3) have been complied with. The procedure in the Bureau regarding analysis of specimens for drugs is set out in section 19 of the Road Traffic Act, 1994 [There are no substantive changes in its equivalent provision section 17(1) of the 2010 Act]. However section 26(5) of the 2010 Act exempts the Medical Bureau of Road Safety from having to comply with Freedom of Information requests under the Freedom of Information Act 1997, unless these requests concern records relating to the general administration of the Medical Bureau of Road Safety. This subsection commenced on August 9, This is the only provision of the 2010 Act that has been brought in to force to date. The exemption of the MBRS from the Freedom of Information Act has an interesting history. It was inserted into the Bill in its final stages following practical difficulties that the Bureau had in the aftermath of the Thompkins decision, Thompkins v Aronu & District Court Judge O Neill [2010] IEHC 58. In Thompkins the Applicant had been refused an Order of disclosure as against the MBRS in circumstances where the Applicant wished to investigate what appeared to have been a significant delay in the production of a certificate of analysis from the

9 Bureau from the date of the taking of the specimen. The Applicant sought documentary evidence as to the dates in which the analysis was carried out and as to whether the specimen had been sent for a confirmatory analysis in the laboratory in the United Kingdom (the practice of sending the specimen for a confirmatory analysis to a specified UK laboratory is authorized by way of Ministerial Order under the Road Traffic Acts) The Applicant argued that the Road Traffic Act places a statutory obligation on the Bureau to carry out analysis of a specimen as soon as is practicable and that the applicant was therefore entitled to obtain this information in order to establish whether the Bureau complied with its statutory obligation by way of disclosure. Mr. Justice O Neill held that the MBRS was not a party to the proceedings and this could not be the subject of a disclosure order. He further held that, as an independent statutory body, it could not be compelled to comply with a prosecution instruction to furnish the information. Mr. Justice O Neill noted in the course of his judgement that the MBRS, in correspondence, had indicated a willingness to cooperate with both the prosecution and the defence in terms of any reasonable inquiry prior to trial and furthermore that the Bureau were prepared to make witnesses available for trial. In the light of the Thompkins decision solicitors acting on behalf of defendants in drug driving cases wrote to the MBRS en masse asking the MBRS to provide explanations for the delays in the analysis of the specimens of individual clients. Perhaps understandably the Bureau decided not to comply with these requests on a pre-trial basis at which stage solicitors sought to request information by way of requests under the Freedom of Information Act. In June 2010 the Data Commissioner made a ruling that the MBRS was obliged to provide the information sought and thereafter the 2010 Act was amended to exclude the MBRS from its scope. In the interim the MBRS has experienced severe judicial criticism for their lack of cooperation in both the District Court and Circuit Court which was perceived as contradicting their stated intention to assist parties in a criminal trial in responding to reasonable enquiries as a matter of practice to answer in writing in advance of a hearing any reasonable queries about the manner in which a sample or specimen was stored and analysed by both the Bureau itself and by a UK laboratory carrying out an confirmatory test. Martin Dully BL

10 MIDLAND & WESTERN CONFERENCE - ATHLONE MEDIATION IS IT A REAL OPPORTUNITY FOR THE BAR? Paper by Derek Kenneally SC 2 nd April 2011 INTRODUCTION In this paper I endeavour to, briefly, analyse the legislative background and motivation for the use of Mediation as a method of alternative dispute resolution in Ireland. I examine what mediation is and why the Bar has a role to play in providing suitably qualified mediators, rather than simply embracing the advisory and advocacy roles that may be associated with the conduct of mediation in the future. I comment on what I consider to be the minimum essential requirements to be met by any barrister intending to provide a mediation service and beg the question whether mediation, in fact, provides a real opportunity for the Bar. THE LEGISLATIVE BACKGROUND AND MOTIVATION FOR THE USE OF MEDIATION AS A METHOD OF ALTERNATIVE DISPUTE RESOLUTION IN IRELAND Order 19 A of the Circuit Court Rules, as inserted by Article 3 of the Circuit Court Rules (Case Progression (General)) , relating to the introduction of case progression in the Circuit Court, sets forth the following mission statement; "The purpose of case progression is to ensure that proceedings are prepared for trial in a manner which is just, expeditious and likely to minimise the costs of the proceedings and that the time and other resources of the court are employed optimally". The tone is clearly set therein, reflecting a general political, if not public and international demand, for a reduction in the cost of dispute resolution as part of a reduction in the cost of legal services as a whole. This is now a clear, if not new reality, facing the Bar, as a provider of legal (but in particular litigation) services, against a backdrop where we as a group are undoubtedly considered to be part of the problem. Simply put, the minimising of the costs of proceedings can undoubtedly include the introduction of efficiency and elimination of delay, which on the face of it is what encourages the concept of case progression, but quite obviously it also includes the resolution of disputes before the costs associated with the briefing of counsel are incurred, that being one of the more substantial items of cost confronting any litigant. Anybody doubting that this is in fact the case might usefully reflect upon Order19A, rule 10(2) of the Circuit Court Rules which expressly excludes allowance in taxation of the fees of counsel for attending case progression, unless certified by the County Registrar. 1 S.I. No. 539 of 2009

11 Consequently the Circuit Court Rules now provide, within the case progression system, that a Judge, or the County Registrar, may on the application of any of the parties on notice or of his or her own motion, when he or she considers it appropriate and having regard to all the circumstances of the case, order that the proceedings, or any issue therein, be adjourned for such time, ordinarily not exceeding 28 days, as he or she considers appropriate and invite the parties to use mediation, conciliation, arbitration or other dispute resolution process to settle or determine the proceedings or issue. 2 The rules also provide for the extension of time limits for compliance where the parties agree to mediate. The case progression rules came into operation on the 1 st day of January 2010, the then Minister for Justice, Equality and Law Reform, Mr. Dermot Ahern TD, having concurred in the making of those Rules of Court on the 17th day of December A month prior to that, Minister Ahern had expressed the view, while speaking at the 2009 Law Reform Commission Annual Conference, in Dublin Castle, that; "Mediation always has the potential to save on court time and legal costs and that is why rules of court, for example, continue to be developed to facilitate adjournment of proceedings in our courts to permit mediation" The Minister thus signalled clearly a determination on the part of the then government to utilise mediation within a general scheme to reduce legal costs which predated, to a significant degree, any obligation to do so which may now, as reported, exist on foot of the EU/IMF Agreement. There is nothing to indicate or suggest that the new government view the matter or objective any differently. The use of mediation is, however, not a new development but has been available to the Courts and, therefore an operative fact of the working life of the Bar, since 2004, first being utilised in the Commercial Court on foot of the provisions of Order 63 A, rule 6(1) (xiii) of the Rules of the Superior Courts, as inserted by the Rules of the Superior Courts (Commercial Proceedings), In an article published to mark the sixth anniversary of the Commercial Court, the Hon. Mr. Justice Peter Kelly, Judge in charge of the Commercial List in the High Court, recently observed; "Such has been the success of mediation to date, I have little doubt but that it will continue to play an important part in the resolution of commercial disputes. Gone is the initial suspicion about the process and reticence to engage in it. Parties to disputes now see its real value and the success rate of mediation continues to improve. It has the great merit of being flexible, confidential, and fast and parties control the process, something which does not occur in litigation. It is less costly than litigation". 4 While the success of mediation in the Commercial Court is clear, the experience of the use of mediation to resolve personal injuries actions, as provided for under section 15 of the Civil Liability and Courts Act , gives rise to less cause for celebration on the part of those who promote mediation as a form of alternative dispute resolution. On the face of it, the 2004 Act ought to have ensured a substantial pool of work for barrister mediators and for barristers available to provide advice and advocacy in the context of a mediated dispute. In the first instance the provisions of section 15 apply to personal 2 Order 19A, rule 7 (1) 3 S. I. No.2/ Arbitration and ADR Review 2010, Issue 2, at page 96 5 Enacted on the 21 st July 2004 approximately seven months after the Commercial Court Rules introducing mediation came into operation.

12 injuries actions in all jurisdictions and, therefore, provide an option to mediate every personal injuries action in the State 6. Secondly, under section 15(4)(b), where there is no agreement reached as to the person to be appointed mediator, the Court can, inter alia, appoint a practising barrister (or practising solicitor) of not less than 5 years standing 7. No requirement is specified that a barrister be an accredited mediator for that purpose, thus opening up the opportunity to every barrister once they had attained the required 5 years standing specified. There is, of course, nothing to prevent a barrister of less than five years standing from being appointed by agreement of the parties or acting as an advisor or advocate in a mediation conference ordered under section 15. A moment of reflection is all that is required for any practicing barrister to be satisfied that section 15 mediation conferences in personal injuries actions, at any level, are few and far between. Equally, while there is no scientific analysis of which I am aware, the anecdotal evidence would suggest that there has been no rush to mediate under the case progression rules in the Circuit Court or under the new Superior Court rules to which I will refer later. It does not form part of the objective of this study to analyse why that is the experience but if there is reluctance on the part of practitioners to promote mediation to their clients it will be seen that there are clear plans afoot to overcome that reluctance. In any event, whether section 15 of the 2004 Act and/or the Circuit Court case progression rules have provided a successful mechanism for alternative dispute resolution or not, it has not given rise to any legislative or governmental reluctance to move forward with the encouragement of the use of mediation in civil and commercial matters. Pressure is clearly being brought to bear from a number of sources, including the European institutions, to advance the utilisation of mediation in dispute resolution in such matters. The European Directive 2008/52/EC [2008 Directive on Cross-Border Mediation in the European Union], which relates to cross border disputes in civil and commercial matters, was adopted by the European Parliament on the 21 st May 2008 and aims to promote the use of mediation in civil and commercial matters and to make the legal status of certain principles of mediation practice uniform among the Member States of the European Union. The 2008 Directive applies to cross border disputes but does expressly exclude certain matters, including guardianship of infants, civil status of natural persons, legal capacity of natural persons, matrimonial property disputes, bankruptcy, administrative actions and matters in which the State itself might be liable. Nevertheless Member States are encouraged to apply its provisions to internal disputes and mediation processes. Take note that the 2008 Directive must be implemented by Ireland before 21 st May of this year. In November 2010, the Law Reform Commission published a Report entitled, Alternative Dispute Resolution: Mediation and Conciliation 8. That report includes a draft Mediation and Conciliation Bill 2010 which sets out in Part 5 thereof provision giving effect to the 2008 Directive but it is interesting to note that the scope of the draft Bill does not stop there but rather includes a number of far reaching provisions which will provide a fixed and prominent position for mediation and conciliation in dispute resolution in Ireland into the future. A brief sample of these provisions includes; 6 Under section 2 thereof, court means in relation to a personal injuries action, the court in which the action has been brought, being the High Court, Circuit Court or District Court, as the case may be. 7 Section15(4)(b)(ii)(I) 8 LRC

13 The staying of Court proceedings arising from mediation or conciliation clauses in contracts in writing; The suspension of limitation periods pending completion of mediation or conciliation; The duty of a solicitor to advise a client concerning mediation or conciliation; The power of the Court, in certain circumstances, to have regard to any unreasonable refusal on the part of a party to consider using mediation or conciliation where such process had in the Court s opinion, a reasonable prospect of success; Specific and detailed provision in relation to family law disputes and proceedings; In relation to personal injuries proceedings, provision with regard to the effect of apology whereby same is not an express or implied admission of liability and is not relevant to the determination of civil liability in the action; In relation to personal injuries proceedings, further provision for the use of early neutral evaluation in personal injuries claims including any claims arising from carrying out medical treatment 9 ; The provision of a Code of Conduct for Mediators and Conciliators; In the meantime, the foundation for active use of mediation, in most forms of dispute, has not only been firmly laid for the Circuit Court under the provisions of the Circuit Court Rules (Case Progression (General)) 2009, already referred to herein, but also in the High Court where, with effect from the 16th day of November , the Rules of the Superior Courts have also been amended by the insertion of Order 56A which provides, inter alia, that the Court, on the application of any of the parties or of its own motion, may, when it considers it appropriate and having regard to all the circumstances of the case, order that proceedings or any issue therein be adjourned for such time as the Court considers just and convenient for the purpose of the use of an ADR process to settle or determine the proceedings or issue. Under this rule, where the parties decide to use an ADR process, the Court may make an order extending the time for compliance by any party with any provision of the Rules or any order of the Court in the proceedings, and may make such further or other orders or give such directions as the Court considers will facilitate the effective use of that process. An application by a party for such an order shall be made by the motion to the Court on notice to the opposing party or parties and shall, unless the Court otherwise orders, be grounded upon an affidavit sworn by or on behalf of the moving party. Save where the Court, for special reason to be recited in the Courts order allows, an 9 early neutral evaluation" is defined in the draft Bill as a process (a) that occurs at an early stage of civil proceedings in which the parties state the factual and legal circumstances to an independent third party (the early neutral evaluator") with suitable knowledge of the subject matter of the dispute, and (b) in which the early neutral evaluator provides an evaluation to the parties as to what the likely outcome of the proceedings would be if the claim proceeded to a hearing in court, and (c) in respect of which the parties are free to accept or reject the evaluation but which may assist them to agree a settlement of the dispute once they have heard the evaluation. 10 Rules of the Superior Courts (Mediation and Conciliation) 2010, S.I. No.502 of 2010

14 application shall not be made later than 28 days before the date on which the proceedings are first listed for hearing. Importantly, the Superior Court Rules are further amended by the insertion of a new rule 1B which permits the Supreme Court or the High Court, in considering the awarding of costs of any appeal or of any action, to have regard to the refusal or failure without good reason of any party to participate in any ADR process. Thus we see teeth having been added now to the encouragement of practitioners not to avoid mediation, if, in fact, they have been guilty of such avoidance to date. It is early days yet but it will be interesting to see if this potential costs sanction results in a higher take up in the High Court of the opportunity to mediate than has been apparent under the Circuit Court rules for case progression which do not contain the same potential sanction. In the meantime the inclusion of the costs provision must be interpreted as a sign of determination on the part of the legislature that the move towards mediation and, thereby, the reduction of legal costs, will not be easily ignored or avoided by practitioners. Most recently, on 24 January 2011 the Multi-Unit Developments Act was signed into law by the President. This Act amends the law relating to the ownership and management of the common areas of multiunit developments and, according to the long title thereof, facilitates the fair, efficient and effective management of bodies responsible for the management of such common areas. When the necessary Ministerial Orders are signed the said act will provide, under section 24, thereof, the equivalent provision in respect of Court ordered Mediation Conferences as that found in section 15 of the 2004 Act, including the provision that the person appointed by the Court to act as a chairperson of a mediation conference may be a practising barrister of not less than five years standing. As with the 2004 Act there is currently no requirement that a barrister so appointed be an accredited mediator. When consideration is given to the totality of the current legislative bundle providing for mediation and conciliation and future legislative provision, either intended as part of the government s own programme or required to give effect to European Union policy, mediation is now a permanent feature of the working landscape for practising barristers, regardless of whether individual barristers make a decision to include the role of mediator in the bundle of services that they offer or decide to focus on extension of their advice and advocacy services to encompass mediations. Insofar as the drive toward mediation, as part of alternative dispute resolution, is motivated by an intent to drive down the cost of dispute resolution or provide a more financially manageable alternative to litigation, the concern has to be that the Bar is considered part of the overall perceived problem in which case the task confronting us is to become an integral part of the solution. Opportunities will undoubtedly continue to exist for some barristers to provide their services as advisers to clients in mediation and, to some extent, to also serve as advocates in that context. The proposal for the use of early neutral evaluation in personal injuries actions, for example, presents a potentially interesting and new area of work in that regard. However insofar as mediation is set to become a significant feature of future dispute resolution it appears, on the face of it, that it will be acting as a mediator which will present barristers with their clearest and perhaps best opportunities for an ongoing and sustainable role in the process. 11 No.2 of 2011

15 Specifically the concern must be that over time if parties are, by legislation or otherwise, encouraged or compelled to a greater degree to undertake mediation but the costs of counsel are not recoverable from the other party, then under the principle that the purpose of mediation is to reduce costs the involvement of counsel at all at that stage will be called into question. In addition the preference of many mediators (and I include myself in this) is to minimise the legal representation in actual attendance at the mediation because it tends to put in place a barrier between the parties and the mediator which ultimately interferes with the effectiveness of the process. Simply put the legal advisors are inclined, naturally, to speak for their clients when the mediator is searching to develop that connection with the party directly. The task therefore confronting the Bar and, more particularly, individual barristers, is to determine how best to ensure that the process does not leave us behind or exclude us completely and that the opportunity perceived is both a real opportunity and one not too easily lost. WHAT IS MEDIATION AND WHY DO BARRISTERS MAKE GOOD MEDIATORS? The Centre for Effective Dispute Resolution (CEDR) uses the following general definition of mediation: "Mediation is a flexible process conducted confidentially in which a neutral person actively assists parties in working towards a negotiated agreement of a dispute or difference, with the parties in ultimate control of the decision to settle and the terms of resolution." 12 Although legislative provision may exclude specific forms of dispute from the framework provided there under, the fundamental principle is that any form of dispute between persons or entities is capable of being mediated provided there is an opportunity to mediate and the parties are either prepared to engage in the process or yield to the process whether compelled, by an agreement, order of the Court or otherwise to do so. When focusing so closely upon legislative provisions relating to mediation it is easy to fall into the error of believing that mediation arises because of litigation and the involvement of solicitors and barristers, as that is clearly the focus of the legislation and Rules of Court reviewed in this paper. This is far from being the case and indeed mediation or the need for mediation can arise or be recognised in many circumstances not yet giving rise to litigation or intended litigation but nevertheless involving a dispute between parties which it is important to them, or even the wider community, to resolve. 13 In Ireland a trend appears to be emerging towards considering mediation as one part of a dual system of mediation and conciliation. The distinction is perhaps best described as being that mediation is a facilitative, non-binding process where the third party mediator is to guide and facilitate the parties toward the achievement of a settlement or agreement. Conciliation on the other hand is regarded as more evaluative than 12 The CEDR Mediator Handbook [4 th Edition] at page It would be an error to perceive therefore that disputes between parties always involve legal representation. This gives rise to an interesting dilemma for barrister mediators regarding the acceptance of an invitation to mediate delivered directly by the parties or one of them, rather than through the familiar channel of a solicitor. It is an issue not without complexity but happily not within the immediate scope of this study and therefore a matter to perhaps be left for consideration and discussion on another occasion.

16 mediation and may involve the delivery by the conciliator of recommendations (nonbinding) where the parties fail to agree or conclude a settlement. However both processes are fundamentally party driven, voluntary non-binding processes, save and until agreement is reached or a recommendation made. Both are grounded in principles of confidentiality and trust in the independence of the mediator/conciliator and his or her skills of facilitation or evaluation as the case may be. The current provisions with regard to mediation within the Commercial Court Rules and the Circuit and Superior Court rules permit for both mediation and conciliation and it is important therefore, upon appointment, to be clear as to what is, in fact, expected of you in that regard. So what makes a good mediator (or conciliator)? The following description referable to the qualities of a commercial mediator appeals to me as one which highlights most of what I consider to be the essential characteristics and personal qualities that are required of a mediator in general. They must be impartial, independent, neutral people who possess characteristics of honesty, integrity, stamina, confidence, good understanding of human nature, practical psychology, patience, tolerance and good listening skills. In addition, in the commercial world, skills such as lateral thinking and commercial acumen are particularly important." 14 I would respectfully add to that list the ability to quickly and accurately grasp and understand even complex detail relevant to the issues in dispute, distil that information to identify and isolate the relevant issues in dispute between the parties, communicate clearly, effectively and with accuracy to assist the decision makers (in this case the parties as opposed to a judge) in identifying and understanding those issues so that they can reach their required determination. It must be beyond argument that qualified, fully trained, practising barristers are expected to have (and generally do have) all of the foregoing qualities and skills in abundance and, in fact, it is part of the overall supervision and regulation of barristers to ensure that we have and maintain those qualities and skills to the extent that any person selecting a barrister to mediate is entitled, without further examination, to expect that they are present and up to date. It is equally fair to say that our obvious knowledge of law and procedure is a perceived advantage but important to recognise and understand that a mediator will not offer legal advice during a mediation and will not draft or participate in the drafting of any settlement agreement. A good mediator will not only resist and seek to overcome the interference of legal representation in his or her efforts to engage with a party but in turn will not seek to interfere in the performance by that legal advisor of his or her advisory duties to his or her client. The scope for the attracting of mediation or conciliation work to the Bar is, ultimately, vast and limited only to the extent that the Bar, as an organisation, and individual members can communicate our availability, skill and value to the wider world. On a practical level, individual members are correctly most focused on mediation work which is immediately available on their own circuits or within their own areas of practice but, for a moment, and in order to encompass the full range of possibilities we should not exclude the ambition of pursuing appointments to mediate disputes outside of Ireland including the cross border disputes which are clearly envisaged and provided for under the 2008 Directive. It is my belief and understanding that the Bar Council is giving 14 Dermot McEvoy, Arbitration and ADR Review 2010 at page 124.