CLA News / A Costly Lesson: The Mandatory S.14 Mediation Act Declaration and the Price of Non-Compliance by Bill Holohan SC

A recent judgment from Mr. Justice Michael Twomey in  V Media Doo & Anor -v- Techads Media Limited,[1] serves as a stark reminder to practitioners of the mandatory nature of the Section 14 Mediation Act 2017[2] obligations regarding mediation advice and information. Delivered on 29 July, this decision underscores the High Court’s unequivocal stance on compliance with Section 14 and highlights the significant consequences for those who fail to adhere to its provisions. The judgment echoes, and indeed gives practical effect to, the warnings issued by Mr. Justice Liam Kennedy in Byrne & Ors v Arnold[3] regarding costs implications for non-compliance.

The 2017 Act: Litigation as a Last Resort

Justice Twomey’s judgment begins by setting out the foundational premise of the 2017 Act: a significant restriction on the constitutional right of access to the courts, transforming litigation from a “first port of call” to a “last resort“. This fundamental shift is primarily driven by Section 14, which places clear obligations on solicitors and, consequently, on the courts.

Key Provisions of Section 14:

• Solicitor’s Duty to Advise (s. 14(1)):

A solicitor must provide detailed mediation advice to his/her client before issuing proceedings. This advice must cover aspects such the benefits and advantages of mediation over litigating, the confidentiality and enforceability of mediation agreements, and the requirement for a Mediation Declaration. This dictates the “very nature of the advice which must be given to a client,” described by Twomey J. as a rare interference by the Oireachtas in the lawyer/client relationship.

• The Mediation Declaration (s. 14(2)):

If proceedings are subsequently issued, a statutory Mediation Declaration, must be sworn by the solicitor, confirming that this detailed advice was given, and must accompany the issue of legal proceedings or follow before any further step is taken. Proceedings “cannot be, or should not be, issued without this Mediation Declaration“.   Whether the Courts Service, in light of the judgment, starts to police the obligation remains to be seen.

• Mandatory Adjournment (s. 14(3)):

Most significantly, Twomey J. decided, a court must adjourn a hearing if the proceedings were issued without the accompanying Mediation Declaration. This is a mandatory obligation, meaning the courts “must refuse to hear a case” if there’s no evidence of the requisite advice. The Oireachtas, he held, has removed the court’s discretion to adjourn in such circumstances.

• Must a court before commencing hearing look for the Declaration?:

Justice Twomey emphatically states that the only logical answer to whether a court must seek evidence of mediation advice is “yes,” because s. 14(3) is mandatory (“shall“). For the court to discharge its obligation to adjourn non-compliant proceedings, it “must first enquire as to whether or not there was an accompanying Mediation Declaration“, just as Kennedy J. did in Byrne v Arnold last year. This, Twomey J. said, places a clear “onus on all courts“[4] to ensure comprehensive advice has been given before hearing a case. The rationale behind this legislative intrusion is clear: to protect prospective litigants from “tens/hundreds of thousands of euros in legal costs and the many years of lost time and effort“.

Mediation is not a “Box-Ticking” Exercise.

The judgment makes it abundantly clear that compliance with Section 14 is far from a mere “box-ticking exercise“. The mandatory adjournment of a hearing due to the absence of a Mediation Declaration demonstrates the “level of its interference with the discretion of the court” and the seriousness with which the Oireachtas views this requirement. Similarly, for solicitors, the detailed specification of required advice underlines that this is a substantive professional obligation, not a perfunctory task.

Justice Twomey highlights the “considerable onus on solicitors” to advise clients on the benefits of mediation, particularly the “very considerable financial benefits“. Solicitors are tasked with explaining that legal fees for a successful mediation are likely to be a “fraction of the legal fees generated over say four years of litigation“. This demands solicitors act in a way that prioritises the client’s financial interests, even if it might seem counter to generating higher legal fees.

Mediation as a “Reality Check”.

A crucial insight from Justice Twomey’s judgment is the concept of mediation as an opportunity for a “reality check“. Drawing on the Supreme Court case of Rosbeg Partners v LK Shields,[5] Twomey J. explains that courts apply “common sense and scepticism” to claims, a form of reality-checking. Human nature often leads litigants to view issues solely from their own perspective, with the benefit of hindsight, and to portray damages at their absolute height.

Mediation, he said, offers a critical pre-litigation assessment by an “objective and completely independent” mediator, allowing litigants to receive an assessment of the “flaws of their own claim and the merits of the other side’s defence” for perhaps the first time. This “reality check” is vital before claims become entrenched and “it is too late“.

A Salutary Lesson: The V Media Case.

The V Media case itself serves as a powerful illustration of these points. Here, the court “sought sight of the Mediation Declaration at the opening of the hearing“.[6] Counsel for the plaintiff confirmed that the proceedings had been issued without the declaration, in direct contravention of s. 14(2). A subsequently sworn declaration could not “retrospectively remedy the breach“.

Justice Twomey noted that “there was no mediation and so, it appears, no reality check of the claims“. The sums claimed were substantial (plaintiffs circa €2.5 million, defendant counterclaim circa €1.8 million), with estimated costs exceeding €1 million. The outcome? The Court found that “neither the plaintiffs, nor the defendant, are entitled to any award,” concluding that “the only winners in this case are the lawyers“. This scenario, the Judge remarked, “should therefore act as a salutary lesson for all plaintiffs” to undergo the reality check of mediation, reinforcing that litigation should be the “option of last resort“.

Implications for Future Practice: The Cost Imperative.

The judgment in V Media directly aligns with, and amplifies, the warnings previously issued by Mr. Justice Liam Kennedy in Byrne v Arnold  , particularly regarding costs.

Key Warnings and Takeaways from Byrne v Arnold (Kennedy J) and V Media (Twomey J):

• Mandatory Adjournment and Stays:

Kennedy J had warned that failure to comply with s. 14 “obliges the court to adjourn proceedings“. While in Byrne v Arnold, rising for a short period, he allowed time for compliance, he expressly stated, “If such a failure to comply with section 14 were to occur in future, the court may adjourn a hearing (at the plaintiffs’ expense) and stay the proceedings until the obligations had been discharged“. Justice Twomey’s actions in V Media confirm this: the court will check, and non-compliance means the hearing cannot proceed.

• Cost Sanctions are Real:

Kennedy J. with Cassandra[7] like prophesy, specifically highlighted that “Significant cost sanctions will be likely in any event” for non-compliance. In Byrne v Arnold, he considered a 15% penalty but he imposed a 5% penalty on recoverable costs for the plaintiffs due to their solicitors’ failure to comply with s.14. He and expressly warned that “courts may be less lenient in future“. That day has come. Justice Twomey’s V Media judgment, where millions were claimed and over a million in costs incurred with no award for either party, powerfully demonstrates the financial perils of bypassing mediation.

• No Excuse for Urgency:

Kennedy J., in Byrne & Ors v Arnold, unequivocally stated that he could “not accept that the urgency justifies the default” in compliance with the s. 14 requirements, advising that the advice “should be given at the earliest opportunity“.  Just weeks before the decision of Twomey J. in V Media, Mr Justice Kennedy made an order on 29 May 2025 in the matter of Colm Leahy v  Pepper Finance Corporation (Ireland)  DAC[8] when he adjourned proceedings which had commenced by way of an application for an injunction, due to the lack of a section 14 declaration, but more particularly ordered that the Plaintiff had to pay the costs of all proceedings up to that date, to the Defendant.

• “Planting the Seed”:

Even if immediate mediation is not successful, in Bryne v Arnold, Kennedy J noted that providing the advice, “a seed is planted” that may lead to later settlement, emphasizing that “Most cases eventually settle before trial“.

• No “Sign of Weakness”:

Solicitors should not view proposing mediation as a sign of weakness. Kennedy J had stated that Section 14 “offers an ideal basis for an overture which can legitimately be presented as compliance with statutory and professional requirements“.

Conclusions for Practitioners.

The decisions of Kennedy J. and Twomey J. are a critical reinforcement of the Oireachtas’s intent behind the 2017 Act and the judiciary’s commitment to its enforcement.

• Solicitors must internalise the fundamental shift:

Litigation is to be a last resort, not a first. The comprehensive mediation advice under s. 14(1) and the accompanying declaration under s. 14(2) are non-negotiable statutory and professional requirements.

• The consequences of non-compliance are severe and direct:

Mandatory adjournment of proceedings, the potential for proceedings to be stayed at the plaintiff’s expense, and, critically, significant cost sanctions. The 5% penalty in Byrne v Arnold, costs to date in Leahy v Pepper and the “lawyers being the only winners” in V Media should serve as strong deterrents.

• Embrace mediation as a “reality check”:

It offers an invaluable opportunity for objective assessment of claims, protecting clients from unnecessary costs and prolonged disputes, often leading to better outcomes than court intervention.

The clear message from the Courts is that the judiciary will rigorously enforce the 2017 Act. Compliance is not merely a procedural formality; it is a substantive obligation designed to protect clients, conserve judicial resources, and foster the earlier, cheaper resolution of disputes. Practitioners would be wise to heed these warnings, lest their clients incur prohibitive costs for litigated disputes that could have been resolved through mediation.

In the immortal words which used to adorn a Bankruptcy Statutory Demand and summonses to attend before the Bankruptcy Court[9] –

“Herein Fail Not At Your Peril.”

Bill Holohan SC

Senior partner at Holohan Lane LLP, Waterview House, Sundays Well Road, Cork, and The Capel Building, St Mary’s

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[1] V Media Doo & Anor -v- Techads Media Limited [2025] IEHC 430:  https://www.courts.ie/view/judgments/6cc45cb9-0dc4-4c50-814c-b873084dae57/c0e565e5-5c18-4afd-a41f-c9be0a419a9f/2025_IEHC_430.pdf/pdf

[2] Section 14 Mediation Act 2017: https://www.irishstatutebook.ie/eli/2017/act/27/section/14/enacted/en/html provides as follows: “PART 3, Obligations of Practising Solicitors and Barristers as regards Mediation: Practising solicitor and mediation:-

“14. (1) A practising solicitor shall, prior to issuing proceedings on behalf of a client—

(a) advise the client to consider mediation as a means of attempting to resolve the dispute the subject of the proposed proceedings,

(b) provide the client with information in respect of mediation services, including the names and addresses of persons who provide mediation services,

(c) provide the client with information about—

(i) the advantages of resolving the dispute otherwise than by way of the proposed proceedings, and

(ii) the benefits of mediation,

(d) advise the client that mediation is voluntary and may not be an appropriate means of resolving the dispute where the safety of the client and/or their children is at risk, and

(e) inform the client of the matters referred to in subsections (2) and (3) and sections 10 and 11 .

(2) If a practising solicitor is acting on behalf of a client who intends to institute proceedings, the originating document by which proceedings are instituted shall be accompanied by a statutory declaration made by the solicitor evidencing (if such be the case) that the solicitor has performed the obligations imposed on him or her under subsection (1) in relation to the client and the proceedings to which the declaration relates.

(3) If the originating document referred to in subsection (2) is not accompanied by a statutory declaration made in accordance with that subsection, the court concerned shall adjourn the proceedings for such period as it considers reasonable in the circumstances to enable the practising solicitor concerned to comply with subsection (1) and provide the court with such declaration or, if the solicitor has already complied with subsection (1), provide the court with such declaration.

(4) This section shall not apply to any proceedings, including any application, under—

(a) section 6A, 11 or 11B of the Guardianship of Infants Act 1964 ,

(b) section 2 of the Judicial Separation and Family Law Reform Act 1989 , or

(c) section 5 of the Family Law (Divorce) Act 1996.”

[3] Byrne & Ors v Arnold [2014] IEHC 308: https://www.courts.ie/view/judgments/5765b2ae-3f49-4b72-9f36-f78b72c2eae8/dc4993ca-e5be-4940-954a-401e3e630171/2024_IEHC_308.pdf/pdf, See the July 2024 Law Society Gazette article by Bill Holohan: https://www.lawsociety.ie/gazette/in-depth/2024/july/speak-to-me/

[4] Para 9.

[5] Rosbeg Partners v LK Shield, [2018] IESC 23: https://www.courts.ie/view/judgments/e40cca1a-167d-4ccc-949a-b9420d368b18/113cadbb-5378-46be-a40a-45a804c09dd3/2018_IESC_23_1.pdf/pdf

[6] Heading before Para 14.

[7] In Greek mythology, Cassandra was a Trojan princess gifted with the ability to see the future by the god Apollo. However, when she spurned his advances, Apollo cursed her so that while she could foresee events, no one would ever believe her prophecies. This curse led to her tragic fate, as she was unable to prevent disasters like the fall of Troy, despite foreseeing them.

[8] Colm Leahy v  Pepper Finance Corporation (Ireland)  DAC record number 2023/5921P.

[9] RSC, O.72: Form 14 (Summons to a bankrupt to attend before a public sitting) and Form 39 (Summons to a person to attend before the Court to be examined [concerning the trade, dealings, affairs or property of the bankrupt. https://www.courts.ie/content/bankruptcy-act-1988-and-personal-insolvency-act-2012#_O1