Jennifer Moraldo (Legal Personal Representative of Elaine Sandiford) v Anthony Sandiford

JurisdictionTrinidad & Tobago
JudgeMr. Justice V. Kokaram
Judgment Date21 June 2018
Neutral CitationTT 2018 HC 155
Docket NumberClaim No. CV2016-01946
CourtHigh Court (Trinidad and Tobago)
Date21 June 2018

IN THE HIGH COURT OF JUSTICE

Before

the Honourable Mr. Justice V. Kokaram

Claim No. CV2016-01946

Between
Jennifer Moraldo

(Legal Personal Representative of Elaine Sandiford)

Claimant
and
Anthony Sandiford
Defendant
Appearances:

Mr. Brent Hallpike instructed by Ms. Suzette Althea Bullen for the Claimant

Mr. Ronald Dowlath instructed by Mr. Ramraj Sookhansingh and Ms. Melissa Ramdial for the Defendant

Civil procedure - Consent order — Whether the consent order should be set aside having regard to the circumstances — Mediation — Whether the parties had arrived at an agreement at the mediation session — Whether the claimant's attorney had the implied or ostensible authority to bind the claimant to the terms of compromise arrived at the mediation as set out in the consent order — Admissibility of evidence in confidential mediation sessions — Credibility of evidence — Court's jurisdiction to set aside consent orders — Sections 11 and 13 of the Mediation Act — Macaulay v. Brady and Golding [2014] J.M.S.C. Civ. 33Brown v. Rice [2007] E.W.H.C. 625Farm Asist Limited v. Secretary of State for the Environment, Food and Rural Affairs [2009] E.W.H.C. 1102Reid v. Charles and Bain Privy Council App. No. 36 of 1987Siebe Gorman and Co. Limited v. Pneupac Limited [1982] 1 All E.R. 377Morris v. Curtis Johnson and another CV2007 — 00987Matthews v. Munster (1887) 20 Q.B.D 141Sheppard v. Robinson [1919] 1 K.B 474Wilding v. Sanderson [1897] 2 CH 534.

JENNIFER MORALDO'S SETTING ASIDE ACTION
Introduction
1

This claim concerns the setting aside of a consent order which had brought to an end ongoing litigation 1 between the Claimant, Mrs. Jennifer Moraldo and her adversary the Defendant, Mr. Anthony Sandiford. The consent order represented the terms of a mediation agreement executed by their respective attorneys at law. This claim addresses the ability of Mrs. Moraldo as a party to the mediation process to set aside that consent order where she alleges

that she did not give her attorney at law any instructions to settle her claim. In a separate action, Jennifer Moraldo v Kenneth O'Brien CV2017-00857, she has brought a claim in negligence against her attorney-at-law (“The negligence action”). Both actions were heard on the same day. The negligence action explores the extent to which Mrs. Moraldo's attorney can be liable in an action in negligence for presenting the said consent order allegedly without his client's instructions or whether such acts are protected by “attorney immunity” and “mediation immunity”
2

Disputes such as these highlight the need to ensure that litigants and equally their attorneys understand the importance of mediation as an appropriate dispute resolution process in enhancing the citizens access to justice where the participants are actively engaged in a collaborative problem solving exercise and a working example of social justice.

3

Mediation is an effective and practical means of resolving many commercial disputes in this jurisdiction, as it is globally. Mediation as an “appropriate” dispute resolution (“ADR”) mechanism is an important pillar in the achievement of civil justice reform effected by the Civil Proceedings Rules (1998) as amended (CPR). To give effect to the overriding objective 2 the Court must, as one of its case management duties, robustly encourage the parties to use mediation as a means of resolving the claim 3. The use of ADR and mediation is an integral feature of the pre-action protocols 4. Parties may be sanctioned in costs for an unreasonable refusal to agree to an ADR process 5. Many attorneys are certified mediators while others, notably recent graduates of the Hugh Wooding Law School, have been exposed to mediation training and mediation advocacy. 6

4

The practice of mediation is regulated by legislation (the Mediation Act 2004 Chapter 5:32) unlike most other jurisdictions in the Commonwealth. The principle of regulation underpinning the Mediation Act is one method of ensuring access to justice through mediation. The Mediation Act establishes among other things the standards to be complied with by mediators, a Code of Ethics to guide mediators and a disciplinary process for mediators. Judges now also increasingly refer matters to judicial settlement conferencing (JSC) another form of consensual dispute resolution with similarities to the mediation process. The Chief Justice of this jurisdiction 7 has piloted two projects on court annexed mediation and JSCs and indicated in his Opening Address for the 2017–2018 law term 8 that a permanent court annexed ADR programme will be introduced in the new term.

5

Routinely our Courts receive draft consent orders and settlement agreements from attorneys at law on behalf of their clients typically by email, setting out terms of compromise obtained through either all parties conferences, mediations or JSCs. With this undoubted support for the increased use of mediation, disputants and their legal advisors must quickly come up to speed with understanding the aims, objectives and their roles in this process.

6

One of the aims of the mediation process and certainly not the only one, is to provide a more meaningful and collaborative problem-solving approach to the practical resolution of disputes as an alternative to the adversarial model in litigation. The key difference in this consensual problem-solving model from adversarialism in litigation is the focus on underlying interests of disputants and not on positions based on rights. As in some cases mediation is seen as a superior form of dispute resolution to litigation, no effort must be spared by all practitioners in the profession to ensure the quality of the process. That is, there must be full agreement to the process engaged and a satisfactory outcome based on informed consent, autonomous decision making and the voluntary submission to terms of settlement

which represent for the clients and participants their own version of what is known in the mediation world as the “win-win” result. In such an event, both parties would have satisfied their underlying interests in the disputes and to that extent, both parties are winners unlike the adversarial model where justice is characterised by the winning adversary
7

The two actions before this Court unfortunately deal with a dispute between a client, her own attorney and her adversary concerning whether a mediation agreement and consent order settling High Court proceedings was in fact agreed by her. These two claims, the setting aside action and the negligence action, were not consolidated but were heard one after the other and the parties agreed that the evidence in both matters are to be examined in isolation. The setting aside and the negligence actions represent in effect a continuum in a mediation process of the relationship between the parties in a Court ordered mediation process and the responsibilities of the attorney subsequent to the mediation in drawing up the mediation/agreement or consent order as a result of the mediation discussions.

8

An attractive feature of mediations is its informality, its fluid shape, its control by consensus of the parties and the guiding but not determining hand of the mediator. The informality of mediations should not be underestimated by litigants nor their attorney at law. Parties and their attorneys must be properly prepared for their mediation. They must prepare in advance for all possible options to resolve a claim, be prepared to negotiate in good faith and to share all necessary information to obtain what they will consider the best possible result in the circumstances of the uncertainty, high stakes and risks of litigation. It is not often that a Court will set aside an agreement which was obtained in a mediation. These mediation agreements must be treated with the respect it deserves as an expression of the free will of the parties. 9 Questions may still arise on whether the agreement is final and binding and a body of law founded on the ordinary law of contract has grown to deal with such issues which typically may arise out of a mediation session or any settlement process.

9

Ironically, the two main disputants in the original litigation, Mrs. Moraldo and Mr. Sandiford, are again enjoined in litigation over an agreement which was designed to put their

main dispute behind them. However, the setting aside action and the negligence action raises the unique opportunity for the Court to place a marker to highlight the rights and obligations of all parties engaged in the Court ordered mediation process and to stymie further satellite litigation that may arise out of such a process from a misunderstanding of roles and functions
10

This action raises the following important issues in relation to the mediation process:

  • a) Whether the parties had arrived at an agreement at the mediation session;

  • b) Whether Mrs. Moraldo's attorney at law had the implied and ostensible authority to bind her to the terms of compromise arrived at the mediation as set out in the consent order;

  • c) Can that order be set aside in circumstances where Mrs. Moraldo has allegedly instructed her attorney at law not to enter into those terms or would her remedy be left against the attorney at law.

11

I turn to the main question which is whether an agreement was arrived at by the parties in a mediation which became a consent order of this Court. There is no dispute that the legal representatives for both parties and the mediator signed an agreement after the conclusion of the mediation. There is also no dispute that a consent order was entered by the legal representatives of both parties on the same terms of that agreement bringing the proceedings to an end on those terms. What is in dispute is whether Mrs. Moraldo agreed to those terms or gave her attorney, Dr. Kenneth O'Brien, the authority to enter into a consent order in...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT