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 the defendant’s claim for costs saying that he had refused arbitration or mediation.
Held: The professional negligence pre-action protocol expected a party to explain why he refused mediation. That heavy costs had already been incurred was not a good reason, and nor was the fact that the allegation was of professional negligence. However: ‘The critical factor in this case, in my view, is whether, objectively viewed, a mediation had any real prospect of success. If mediation can have no real prospect of success of a party may, with impunity, refuse to proceed to mediation on this ground. But refusal is a high risk course to take, for if the court find that there was a real prospect, the party refusing to proceed to mediation may, as I have said, be severely penalised. Further, the hurdle in the way of a party refusing to proceed to mediation on this ground is high, for in making this objective assessment of the prospects of mediation, the starting point must surely be the fact that the mediation process itself can and does often bring about a more sensible and more conciliatory attitude on the part of the parties than might otherwise be expected to prevail before the mediation, and may produce a recognition of the strengths and weaknesses by each party of his own case and of that of his opponent, and a willingness to accept the give and take essential to a successful mediation. What appears to be incapable of mediation before the mediation process begins often proves capable of satisfactory resolution later.’
In this case the claimant was so seriously disturbed that he was fixated on the claim and incapable of a balanced evaluation. The defendant should not be refused his costs.


Lightman J


[2002] EWHC 1051 (Ch), [2003] 1 Lloyds Rep 379, [2001] EWHC 1051 (Ch), [2003] EWHC 9026 (Costs), [2003] 2 Costs LR 153, [2002] CP Rep 59, [2002] Lloyds Rep PN 508




England and Wales


CitedDunnett 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 by:

CitedReed Executive Plc, Reed Solutions Plc v Reed Business Information Ltd, Reed Elsevier (Uk) Ltd, Totaljobs Com Ltd CA 3-Mar-2004
The claimant alleged trade mark infringement by the respondents by the use of a mark in a pop-up advert.
Held: The own-name defence to trade mark infringement is limited. Some confusion may be allowed if overall the competition was not unfair . .
Appeal FromHurst v Leeming CA 23-Jul-2002
. .
Appeal fromRobert Alfred Hurst v Ian Leeming ChD 14-Mar-2003
. .
See AlsoHurst v Leeming SCCO 9-May-2003
. .
CitedHalsey v Milton Keynes General NHS Trust etc CA 11-May-2004
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.
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Costs

Updated: 25 September 2022; Ref: scu.174241