THE JUDGMENT IN ALI -V- CHANNEL 5 1: THE ALLEGED FAILURE TO MEDIATE
The judgment on costs issues today in Ali & Anor v Channel 5 Broadcast Ltd  EWHC 840 (Ch) covers a number of issues. I am dealing with each distinct issue in a separate post. The first deals with costs following an alleged failure by the claimants to mediate.
The claimants had been successful in recovering £10,000 each in damages following a broadcast that invaded their private rights. This judgment dealt with costs.
THE ALLEGED FAILURE TO MEDIATE
The judge considered an argument that the claimants costs should be refused in full, or reduced, because of a failure to engage in mediation at an early stage.
THE JUDGMENT ON THIS ISSUE
The judge looked at costs in tranches of time. The first issue was costs up to 18 October 2017
“… if the sentiments expressed by your client Mr Ali in his evidence about the complete inadequacy of damages as a remedy are correct, it is difficult to see why litigation was commenced in the first place without at least exploring alternative methods of resolving his concerns. In any confidential mediation, your clients can explain exactly why they feel a public apology to be so fundamental to their needs Our clients will listen closely to whatever yours have to say, and will consider seriously any reasonable solution on this issue”.
- The letter went on to say that Channel 5 had decided not to broadcast or otherwise transmit or make available for public viewing any footage showing the Claimants’ eviction in the future, and offered a formal undertaking to that effect.
- On 1 December 2017 Hamlins replied agreeing to mediation and saying:
“You state your client’s objection to making an apology to our clients. The defendant has been aware as to our clients’ requirement for vindication from the outset of this claim. It is our clients’ position that, in the event they win this action and obtain Judgment in their favour, this will provide them such vindication. Alternatively, if there can be a settlement, they will need a form of effective vindication. However, as you say, this issue can be explored at a mediation.”
- The mediation took place, but the matter did not settle.
- On 19 December 2017 there was a costs and case management hearing before Master Shuman at which the Claimants’ revised costs budget for pleadings, trial preparation, trial and ADR was approved subject to certain reductions. Channel 5 did not file, serve or seek approval of any costs budget.
Costs down to 18 October 2017
- It is common ground that, so far as the costs down to 18 October 2017 are concerned, the starting point is that the Claimants have succeeded in their claim and prima facie are entitled to their costs. Channel 5 contends, however, that there should be no order as to costs, alternatively that the Claimants should only recover 50% or 75% of their costs, on the ground that the Claimants wrongly refused to engage in ADR. In support of this contention, counsel for Channel 5 relied upon PGF II SA v OMFS Co 1 Ltd  EWCA Civ 1288,  1 WLR 1386 and Thakkar v Patel  EWCA Civ 117,  2 Costs LR 233.
- In my judgment the Claimants did not refuse to engage in ADR, and there is no justification for depriving them of any part of their costs during this period. While it is true to say that the Claimants did not embrace Channel 5’s first suggestion of ADR in its letter dated 29 February 2016, they did say in Hamlins’ letter dated 10 June 2016 that they would keep it under review. Moreover, the Claimants’ response to Channel 5’s second suggestion of ADR (which on its face was confined to the question of an injunction) in its letter dated 14 June 2016 in Hamlins’ letter dated 3 August 2016 was to state that they were fully prepared to engage in ADR at a suitable time and to invite proposals. Channel 5 did not propose mediation (or any other form of ADR) until 28 November 2017. When Channel 5 proposed mediation, the Claimants promptly agreed.
- Accordingly, Channel 5 must pay the Claimants’ costs in respect of this period, to be subject to detailed assessment on the standard basis if not agreed.”