Picture the scene. The trial has just finished. The learned judge accepted your erudite interpretation of the statutory duty and your expert assessment of the common law position. Your pre-trial assessment was flawless. So why are you not popping the champagne corks?
You were sure that when your sharp opponent offered mediation pre-proceedings that it was nothing more than a perfunctory tactical ploy. You have never mediated, you’re a litigator for goodness sake, so you never gave it another thought.
Unfortunately the judge thought you should have even though this would have denied you your glorious day in court. Not only did she think you should have attempted mediation she also thinks you should be punished for failing even to contemplate it. She orders no costs from the date of the offer to mediate, even though you won so spectacularly.
Dunnett v Railtrack PLC [2002] EWCA Civ 302 was not a personal injury claim as it involved horses coming out second best of a collision with an express train on a railway line. However the principle applies. The defendant got the substantive issues absolutely correct. Won at first instance and at appeal. Before the costs of the appeal were incurred the claimant offered mediation. The defendant’s response was that they “instructed their solicitors to turn it down flat. They were not willing to consider it.”
Given this refusal by the defendant to contemplate mediation the court made no order for the costs of the appeal, invoking it’s powers and duties under Part 44 CPR. Brooke LJ said
“Mr Lord, when asked by the court why his clients were not willing to contemplate alternative dispute resolution, said that this would necessarily involve the payment of money, which his clients were not willing to contemplate, over and above what they had already offered. This appears to be a misunderstanding of the purpose of alternative dispute resolution. Skilled mediators are now able to achieve results satisfactory to both parties in many cases which are quite beyond the power of lawyers and courts to achieve. This court has knowledge of cases where intense feelings have arisen, for instance in relation to clinical negligence claims. But when the parties are brought together on neutral soil with a skilled mediator to help them resolve their differences, it may very well be that the mediator is able to achieve a result by which the parties shake hands at the end and feel that they have gone away having settled the dispute on terms with which they are happy to live. A mediator may be able to provide solutions which are beyond the powers of the court to provide. Occasions are known to the court in claims against the police, which can give rise to as much passion as a claim of this kind where a claimant’s precious horses are killed on a railway line, by which an apology from a very senior police officer is all that the claimant is really seeking and the money side of the matter falls away.”
What does your client want and why do they come to you to get it?
For further guidance on unreasonable refusals to mediate see Halsey v Milton Keynes NHS Trust.
Related posts:
