In a landmark judgment, the case of DKH Retail Limited, C-Retail Limited, Supergroup Internet Limited, Superdry Plc v City Football Group Limited[1] has made headlines as the first reported instance of a compulsory mediation order being awarded. This case, heard in the Chancery Division, revolves around a trade mark dispute involving the well-known Superdry brand and City Football Group, the commercial entity behind Manchester City Football Club.

The core issue in this case was whether the promotional branding on Manchester City's sports kit, which included the words "Super" and "Dry" as part of their sponsor Asahi Super "Dry" 0.0% lager, could be confused with the Superdry brand. The claimants argued that this branding could mislead the public into associating the sports kit with their trade marked clothing line.

What sets this case apart is the court's decision to issue a compulsory mediation order. The first reported decision of its kind stipulates that both parties must engage in mediation to resolve their dispute before proceeding to a full trial. The order reflects a growing trend in the judiciary to encourage alternative dispute resolution methods, aiming to reduce the burden on courts and promote amicable settlements.

Mr Justice Miles, who presided over the case, referenced the leading case of Churchill v Merthyr Tydfil County Borough Council[2] where the Court of Appeal determined that the court had power to order unwilling parties to engage in alternative dispute resolution. Subsequently the Civil Procedure Rules were amended with effect from 1 October 2024 to reflect this ruling, and now CPR 1.4 (which concerns the duty of active case management) includes the express power to order the parties to use and facilitate the use of ADR. The court's case management powers under CPR 3.1 now also include the power to order the parties to participate in ADR. 

Mr Justice Miles emphasised the effectiveness of mediation in resolving complex commercial disputes efficiently: “Experience shows that mediation is capable of cracking even the hardest nuts.”[3] 

He noted that although it was late in the proceedings to be seeking an order (the Claimant’s application was made at the Pre-Trial Review), he saw the advantage in the parties' positions having been crystallised through pleadings and the service of witness statements. Mediation was subsequently ordered. 

The judgment highlights the increasing recognition of mediation as a valuable tool in resolving high-stakes disputes. Mediation also allows for more creative solutions that might not be available in a court ruling. The process itself tends to be quick and collaborative, and even if late in proceedings, there is still real benefit to commit to the process. 

Interestingly, a note at paragraph 44 of the judgment reads:

“Postscript: on 13 January 2025 the parties notified the court that they had settled their dispute.”

[1] [2024] EWHC 3231 (Ch)

[2][2023] EWCA Civ 1416

[3] Paragraph 38, [2024] EWHC 3231 (Ch)