PART 36 CASE OF THE DAY (3): SHOULD FAILURE TO MEDIATE PROMPTLY MAKE A DIFFERENCE TO THE COSTS ORDER?
We are continuing with our examination of the costs implications of a costs order. Here we look at the defendant’s arguments that the claimant’s failure to respond promptly to an offer to mediate should lead to costs penalties. (The Sounds…
COST BITES 221: A FAILURE TO AGREE TO MEDIATE DID NOT LEAD TO A REDUCTION IN A SUCCESSFUL DEFENDANT’S COSTS
In Assensus Ltd v Wirsol Energy Ltd (Re Consequential Matters) [2025] EWHC 503 (KB) Mr Justice Constable rejected the claimant’s argument that the successful defendant’s refusal to attend mediation should lead to a reduction in the defendant’s costs. The case…
THE COURT’S POWERS IN RELATION TO ORDERING MEDIATION: A SUMMARY: AND A WEBINAR ON MEDIATION OF PARTICULAR USE TO HOUSING LAWYERS
The Civil Procedure Rules were amended on the 1st of this month to make it clear that the court can compel the parties to engage in alternative dispute resolution. Here we look at the changes. There is a webinar on…
BARNS, EVIDENCE, DOCUMENTS AND MEDIATION: A LOT TO THINK ABOUT HERE
There are some interesting observations about both evidence and mediation in the judgment of HHJ Mithani KC in Conway v Conway & Anor (Rev1) [2024] EW Misc 19 (CC). “One matter that seriously concerns me is why the Defendants…
SILENCE IN THE FACE OF AN OFFER TO MEDIATE CAN HAVE AN IMPACT ON COSTS: ONCE AN OFFER TO MEDIATE IS MADE THE BALL IS IN THE RECIPIENT’S COURT
In Northamber PLC v Genee World Ltd & Ors (Rev1) [2024] EWCA Civ 428 the Court of Appeal reiterated certain key points about a party refusing to mediate. Silence in the face of an offer to mediate can have an…
INDEMNITY COSTS NOT AWARDED WHEN A DEFENDANT REFUSED TO MEDIATE: HIGH COURT DECISION TODAY
In Richards & Anor v Speechly Bircham Llp & Anor (Consequential Matters) [2022] EWHC 1512 (Comm) HHJ Russen (sitting as a High Court judge) refused an application for indemnity costs made on the basis that the defendants had refused mediation….
COURT OF APPEAL ENCOURAGES LITIGANTS TO GET INTO GEAR ON LISTS OF ISSUES AND SUGGESTIONS FOR MEDIATION
In Gregor Fisken Ltd v Carl [2021] EWCA Civ 792 the Court of Appeal made observations about two issues: the drafting of a list of issues; the failure to consider mediation. “It appears that the list of issues agreed by…
COSTS IN AN ESTATE CLAIM: REFUSAL TO ENGAGE IN MEDIATION WAS A FACTOR TO BE TAKEN INTO CONSIDERATION
I am grateful to barrister James Miller for sending me a copy of the decision of HHJ Truman in Nicholls -v- Nicholls (19th June 2018), available here NICH19062018APP. The judgment is solely concerned with costs in relation to an action…
A JUDGMENT ADJOURNING A TRIAL: THE CLAIMANT DID NOT KNOW WHETHER THE ACTION WAS NECESSARY; THE TRIAL BUNDLE DID NOT HAVE THE KEY DOCUMENT (AND MORE)
The short judgment of Mr Justice Holman in Matthews v Matthews & Anor [2018] EWHC 906 (Fam) looks like a family case. However it is an inheritance claim and contains some surprising revelations. KEY POINTS If you are asking a judge…
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 [2018] 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…
THE COSTS OF MEDIATION AND THE COSTS BUDGET: AVOIDING A POSSIBLE TRAP
I am grateful to Alan Mendham for writing to point out a possible trap in relation to costs budgeting and mediation. Alan points out that disputes can arise as to whether mediation is included in the phase for settlement…
DAMAGES, COSTS AND MEDIATION: COURT OF APPEAL CONSIDERS THE BOUNDARIES
In the judgment today Gore -v- Naheed [2017] EWCA 369 the Court of Appeal considered the issue of damages being awarded (when they had not been claimed) and where costs should lie when a party – reasonably – declined to…
MEDIATION AND LITIGATION: A REVIEW OF KEY CASES: IGNORE THEM AT YOUR PERIL
It is sometimes difficult to keep track of the cases that refer to mediation. Given that ADR can play a central role in the litigation process this is an appropriate time to review the key cases, particularly in the light…
MEDIATION AND LITIGATION: ANOTHER EXAMPLE OF THE DANGERS OF IGNORING OFFERS TO MEDIATE
This blog reports regularly on cases where the courts have highlighted the advantages of mediation and the dangers of rejecting an offer to mediate. The latest note of cautious comes from the judgment of Lord Justice Jackson in Thakkar -v-…
ISSUE BASED COSTS ORDERS: ITS NOT MONEY IN THE BANK
The judgment of Sir Anthony Edwards-Stuart in Lloyds Bank -v- McBains Cooper [2017] EWHC 30 (TCC) considers the question of issue based costs orders. What is interesting here is: Neither party appears to have made a valid Part 36 offer….
ASSESSMENT OF COSTS & FAILURE TO MEDIATE: CLAIMANT BEATS OWN OFFER AND COSTS INCREASED BY 10%
The claimant beat its own Part 36 offer on costs in the case of Reid -v- Buckinghamshire Healthcare NHS Trust [2015] EWHC B21. Consequently costs were increased by 10% and additional interest accrued. “If the party unwilling to mediate is…
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