UPDATE ON PREVIOUS POST: SUCCESSFUL DEFENDANT’S COSTS REDUCED BY 25% BECAUSE THEY REFUSED TO CONSIDER MEDIATION

Following the previous post about the judgment of HHJ Mithani KC in Conway v Conway & Anor (Rev1) [2024] EW Misc 19 (CC)   there is an interesting post about the subsequent decision of costs. This is on Linked In by Tony Guise available here.

Since initial posting I have had useful information from Cameron Stocks, Counsel for the Claimant, that gives a fuller account of the judge’s reasoning. 

THE JUDGMENT ON COSTS

Tony reports that the defendant’s costs were reduced by 25% because they rejected the claimant’s offer of mediation out of hand.

• The defendants had a strong case (they succeeded).
• The judge found that mediation would probably not have succeeded.
• However to reject an offer of mediation out of hand was unreasonable conduct.

NOTE FROM CAMERON STOCKS

Cameron kindly sent me the following note.

“The Judge did not find that mediation would probably not have succeeded. The judge concluded (amongst a number of other things) that (a) he did not think it possible for the Defendants to say that they were almost certainly likely to win as it was entirely possible that notwithstanding the documentary evidence that the Claimant could have persuade the Court on the legal point of Section 2; (b) that it was a fallacy to suggest (as it was in correspondence) that just because the parties were at loggerheads that mediation might not result in agreement; and (c) there was nothing to say that the Claimant would not have increased his previous WP offers to such a figure that would have persuaded the Defendants not to proceed with moving into the Barn but that was speculation, the point being that a trained mediator would have been able to put forward various alternatives that may have tempted the parties to settle and there was no justification for the outright refusal to mediate.

“It might be helpful to point out the chronology he considered namely that there was a pre-action offer for mediation which was ignored. There was then a further offer for mediation at the stage of directions questionnaires which was rejected for reasons the judge found to be entirely unreasonable. On the first day of trial, the parties were given strong judicial encouragement to try and settle and C made a WP offer which was rejected without counter-offer. Finally, on the adjournment of the trial, C made a further offer for mediation which Ds rejected unless C paid for all of the costs of the mediation, a point the judge found to be unreasonable.”

THE DEFENDANT’S COSTS BUDGET

“Another interesting point is that the Defendants did not vary their budget from what was originally agreed despite the significant increases to the trial length. As a result, they obtained a payment on account of 75% of a budget of arounf £47,000 instead of their actual costs which were significantly higher. It remains to be seen if they would be allowed to vary during detailed assessment.”