The court considered the effect on costs orders of a refusal to take part in alternate dispute resolution procedures. The defendant Trust had refused to take the dispute to a mediation. In neither case had the court ordered or recommended ADR.
Held: If the parties (or at least one of them) remain intransigently opposed to ADR, then it would be wrong for the court to compel them to embrace it. The claimant in Halsey had sought mediation as a matter of tactics.
Lord Justice Dyson said: ‘The court’s role is to encourage not to compel.’ but ‘In deciding whether to deprive a successful party of some or all of his costs on the grounds that he has refused to agree to ADR, it must be borne in mind that such an order is an exception to the general rule that costs should follow the event. In our view, the burden is on the unsuccessful party to show why there should be a departure from the general rule. The fundamental principle is that such departure is not justified unless it is shown (the burden being on the unsuccessful party) that the successful party acted unreasonably in refusing to agree to ADR.’ An effective compulsion to arbitrate might in human rights law be an unacceptable restraint on a party’s right of access to court.
Lord Justice Laws, Lord Justice Ward, Lord Justice Dyson
[2004] EWCA Civ 576, Times 27-May-2004, Gazette 03-Jun-2004, [2004] 1 WLR 3002, [2004] CP Rep 34, [2004] 4 All ER 920, (2005) 81 BMLR 108, [2004] 3 Costs LR 393
Bailii
European Convention on Human Rights 6(1), Civil Proceure Rules 44.3(2)
England and Wales
Citing:
Cited – Cowl and Others v Plymouth City Council CA 14-Dec-2001
It remains of overriding importance for parties to seek to avoid litigation wherever possible. In this case, a dispute between a local authority and some of the inhabitants of one of its residential homes. The courts now have ample power within the . .
Cited – Dunnett v Railtrack plc CA 22-Feb-2002
The claimant had appealed a judgment against her. The court itself recommended that the parties use a method of alternate dispute resolution, to avoid the need for appeal. The defendant refused, not wishing to make any payment over and above the . .
Cited – Hurst v Leeming (9026) ChD 9-May-2002
The claimant solicitor, had instructed the defendant, a barrister, to represent him in a civil claim. He sought had damages for alleged negligence. He had agreed that the action could not proceed, and the court had to decide the costs. He resisted . .
Cited – Deweer v Belgium ECHR 27-Feb-1980
The applicant, a Belgian butcher, paid a fine by way of settlement in the face of an order for the closure of his shop until judgment was given in an intended criminal prosecution or until such fine was paid.
Held: Since the payment was made . .
Cited – Arthur JS Hall and Co (A Firm) v Simons; Barratt v Woolf Seddon (A Firm); Harris v Schofield Roberts and Hill (A Firm) HL 20-Jul-2000
Clients sued their solicitors for negligence. The solicitors responded by claiming that, when acting as advocates, they had the same immunities granted to barristers.
Held: The immunity from suit for negligence enjoyed by advocates acting in . .
Cited – Royal Bank of Canada v Secretary of State for Defence ChD 2003
The parties had disputed the interpretation of a lease.
Held: Though a point of law had been at issue, the dispute should still have been mediated. The ADR pledge given by Government was something to which he ought to attach ‘great weight’: . .
Cited – Performance Cars Ltd v Abraham CA 28-Jul-1961
The plaintff sought damages after a collision, but the car had already been damaged in a previous accident, the repair of which would cover the second accident. Lord Evershed MR said: ‘In my judgment in the present case the defendant should be taken . .
Cited – Chapman v Hearse, Baker v Willoughby HL 26-Nov-1969
The plaintiff, a pedestrian had been struck by the defendant’s car while crossing the road. The plaintiff had negligently failed to see the defendant’s car approaching. The defendant had a clear view of the plaintiff prior to the collision, but was . .
Cited – Jobling v Associated Dairies HL 1980
The claimant suffered an accident at work which left him with continuing disabling back pain. Before the trial of his claim he was diagnosed as suffering from a disease, in no way connected with the accident, which would in any event have wholly . .
Cited – Fairchild v Glenhaven Funeral Services Ltd and Others HL 20-Jun-2002
The claimants suffered mesothelioma after contact with asbestos while at work. Their employers pointed to several employments which might have given rise to the condition, saying it could not be clear which particular employment gave rise to the . .
Cited – Rahman v Arearose Limited and Another, University College London, NHS Trust CA 15-Jun-2000
The claimant had suffered a vicious physical assault from which the claimant’s employers should have protected him, and an incompetently performed surgical operation. Three psychiatrists agreed that the aetiology of the claimant’s very severe . .
See Also – Halsey v Milton Keynes General NHS Trust and Another v Joy and Another SCCO 11-May-2004
. .
Cited by:
Cited – Couwenbergh v Valkova CA 27-May-2004
The deceased’s family lived in Europe. The defendant had moved in as tenant and had become confidante and friend over many years. A will had been prepared leaving everything to the defendant. That will had been challenged alleging incorrect . .
Cited – Reed Executive Plc, Reed Solutions Plc v Reed Business Information Ltd, Reed Elsevier (Uk) Ltd, Totaljobs.Com Ltd CA 14-Jul-2004
Walker v Wilshire still Good Law
After successfully appealing, the defendant claimant argued for a substantial part of its costs, saying that the defendant had unreasonably refused ADR. To pursue this, it now sought disclosure of the details of the without prejudice negotiations . .
Cited – Daniels v Commisioner of Police of the Metropolis CA 20-Oct-2005
The claimant appealed refusal of her application that the defendant be disallowed any of his costs. As a serving officer she had sought damages for negligence having been injured falling from her police horse. The defendant had rejected three . .
Cited – Brown v Rice and Another ChD 14-Mar-2007
The parties, the bankrupt and her trustee, had engaged in a mediation which failed at first, but applicant said an agreement was concluded on the day following. The defendants denied this, and the court as asked to determine whether a settlement had . .
Cited – Vale of Glamorgan Council v Roberts ChD 1-Dec-2008
. .
Cited – Corby Group Litigation v Corby District Council (Costs) TCC 11-Aug-2009
. .
Cited – Gil v Baygreen Properties Limited (In Liquidation) and Others ChD 19-Aug-2004
. .
Cited – Burchell v Bullard and others CA 8-Apr-2005
Each side had succeeded in part on their claims and counterclaims, but the Respondent was andpound;5,000 out of pocket. Each party had been ordered to pay the costs of the other.
Held: The appeal succeeded. The judge had correctly recognised . .
Cited – Askey v Wood CA 21-Apr-2005
. .
Cited – LMS International Ltd and others v Styrene Packaging and Insulation Ltd and others TCC 30-Sep-2005
. .
Cited – Brown v MCASSO Music Productions CA 10-Nov-2005
. .
Cited – Hickman v Blake Lapthorn QBD 17-Jan-2006
. .
Cited – Aird and Another v Prime Meridian Ltd TCC 19-Sep-2006
. .
Cited – P4 Ltd v Unite Integrated Solutions Plc TCC 17-Nov-2006
. .
Cited – Allen v Colman Coyle Llp SCCO 29-Jun-2007
. .
Cited – Nigel Witham Ltd v Smith and Another (No. 2) TCC 4-Jan-2008
. .
Cited – Malmesbury and Others v Strutt and Parker (A Partnership) QBD 18-Mar-2008
. .
Cited – Cumbria Waste Management Ltd and Another v Baines Wilson (A Firm) QBD 16-Apr-2008
The court was asked to consider whether documents generated in a mediation could be disclosed by one of those parties in later proceedings against solicitors for negligence in drafting and negotiation and agreement with the other party, which gave . .
Cited – Rolf v De Guerin CA 9-Feb-2011
The parties had disputed a building contract. A Part 36 offer had been made by the builder defendant, but the judgment was for rather less, and the judge awarded the claimant her costs.
Held: The court exercised its discretion to set aside the . .
To be revisited – Wright v Michael Wright Supplies Ltd and Another CA 27-Mar-2013
The appellant said that the judge had erred in allowing only written evidence. The case was long running, complex, unwieldy and the intransigent parties were each acting as litigants in person.
Held: The court asked whether mediation might not . .
Cited – Mann v Mann FD 5-Mar-2014
The parties had agreed to an order settling the ancillary relief application with enforcement first to be through mediation. W applied to court for enforcement rejecting H’s request for mediation. . .
Lists of cited by and citing cases may be incomplete.
Arbitration, Costs, Human Rights, Litigation Practice
Leading Case
Updated: 10 November 2021; Ref: scu.196701
