COST BITES 310: COSTS, CONDUCT AND ADR: THE DEFENDANTS HAD NOT BEEN UNREASONABLE IN THEIR APPROACH TO MEDIATION: IT WOULD HAVE BEEN WHOLLY REASONABLE FOR THEM TO REFUSE TO MEDIATE IN ANY EVENT
The impact that a litigant has to mediation, and in particular a failure to properly respond to or participate in ADR, can have an impact on costs. However this is not automatic. Further there are cases (such as this) where…
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…
PART 36, REFUSAL TO MEDIATE AND SHOULD A PARTY BE SUBJECT TO THE PART 36 PENALTIES WHEN AN OFFER WAS MADE TO THREE DEFENDANTS?
What should the court do in a case where a Part 36 offer is made in relation to a number of defendants but the claimant only succeeds against one of them? Can a failure to accept an offer of mediation…
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…
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…
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…
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…
MEDIATION PRIVILEGE UPHELD: “PARTIES MUST BE FREE TO CANDIDLY DISCUSS ALL OPTIONS FOR SETTLEMENT”
In E (A Child) (Mediation Privilege), Re [2020] EWHC 3379 (Fam) Mr L Samuels QC (sitting as a High Court Judge) granted an application to prevent a party relying on matters that took place in a mediation. “Parties must be…
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…
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…
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-…
DISCLOSING DETAILS OF COSTS INFORMATION PROVIDED FOR MEDIATION : DISCLOSURE ALLOWED: HIGH COURT DECISION
In Savings Advice Limited -v- EDF Energy Customers Ltd [2017] EWHC B1 (Costs) Master Haworth had to consider the issue of admissibility of evidence relating to a mediation. KEY POINTS Information provided about costs in the run up of a mediation…
ANOTHER CASE OF INDEMNITY COSTS BECAUSE OF A REFUSAL TO MEDIATE
The decision on Master Simons in Bristow -v- The Princess Alexander Hospital NHS Trust [2015] EWHC B22 (Costs) contains examples of two mistakes that can be made on assessment of costs. The most telling is the defendant’s failure to respond…
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…
ANOTHER CASE WHERE THERE WAS AN INVALID PART 36 OFFER; NO RESPONSE TO OFFERS TO MEDIATE AND NEITHER PARTY RECOVERED COSTS
There is a brief report on Lawtel of the Court of Appeal decision in NJ Rickard Ltd -v- Holloway (CA 03/11/2015)*. It is an example of: (i)the importance of making a valid Part 36 offer; (ii)an example of the consequences…
WHOLLY SUCCESSFUL DEFENDANT RECOVERS ONLY TWO-THIRDS OF COSTS BECAUSE OF FAILURE TO ENGAGE IN ADR
In Christian -v- The Commission of Police for the Metropolis [2015] EWHC 371 (QB) Mr Justice Turner considered the costs applications of a failure to a defendant to engage in mediation. THE CASE The claimant was unsuccessful in an action…
COURT ORDERED MEDIATION: DRAFT PRECEDENTS
In Bradley -v- Heslin Norris J set out , in strong terms the desirability of a formal order for mediation. Here we look at the precedents available. THE OBSERVATIONS IN BRADLEY In Bradley -v- Heslin [2014] EWHC 3276 (Ch) “If in…
SOME THINGS MAY BE BETTER MEDIATED THAN LITIGATED: NEIGHBOUR DISPUTES FOR INSTANCE
There are some very important observations in the judgment of Norris J in the case of Bradley -v- Heslin [2014] EWHC 3276 (Ch) today. This was given in a neighbour dispute over access and gates which could have been remedied…
A PARTY UNREASONABLY REFUSES TO MEDIATE BUT RECOVERS ALL ITS COSTS: WHY NORTHGROP GRUMMAN (2) IS ESSENTIAL READING
The question of costs liability following an “unreasonable” failure to mediate remain a developing area of law. This is an area with profound practical implications for litigators and their clients. That is why the decision of Mr Justice Ramsey in…
MEDIATE OR ELSE? THE COSTS CONSEQUENCES OF REFUSING TO MEDIATE
A recent post looked at the Court of Appeal mediation scheme and examined the potential penalties for a party refusing to mediate. In PGF II SA –v- OMES Company I Limited [2013] EWCA CIV 1288 the Court of Appeal looked…
MEDIATION IN THE COURT OF APPEAL
The Court of Appeal can recommend that appeals be referred to mediation. This blog looks at the process and some of the case law. THE GUIDANCE A Lord/Lady Justice considering an application for permission to appeal is expressly required…
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