Last week I reported on Hullock v East Riding of Yorkshire County Council. Matthew Harman of Mathhew Harman & Partners costs lawyers (Matthew is also a Mediator) kindly contacted me through LinkedIn to refer me to the case of Wildlake v BAA Ltd [2009] EWCA Cic 1256. This case involved a claimant in a personal injury matter exaggerating her injuries – she did this by failing to report pre-accident problems to the medical experts. This was discovered well over a year before the matter went to trial.
The case is well worth reading for a concise review of the law on the costs consequences of exaggerated claims. Cases reviewed include:
- Molloy v Shell UK Ltd [2001] EWCA Civ 1272
- Painting v University of Oxford [2005] EWCA Civ 161
- Shah v Wassim Ul-Haq [2009] EWCA Civ 542
- Jackson v Ministry of Defence [2006] EWCA Civ 46
- Hall & ors v Stone [2007] EWCA Civ 1354
- Straker v Tudor Rose [2007] EWCA Civ 368
- Barnes v Time Talk UK Ltd [2003] EWCA Civ 402
- Morgan v UPS [2008] EWCA Civ 1476 and
- Blakes Estates Ltd v Government of Montserrat [2005] UKPC 46, [2006] 1 W.L.R. 297
The claimant was awarded just under £5,900 by the trial judge. The defendant had made a part 36 offer of £4,500. Nevertheless the court ordered the claimant to pay the defendant’s costs. On appeal the court decided the judge had misdirected himself as to the law and so was able to set aside the order. Taking everything into account the Court of Appeal substituted it’s own view that there should be no order for costs.
From a mediator’s point of view the point to make is that failing to attempt to negotiate a claim is something that will be taken into account by costs judges. Ward LJ said at para 43 :
Part 36 now also affects a claimant. Whilst not obliged to make a counter-offer, in this day and age of encouraging settlement, claimants who do not do so run the risk that their refusal will impact upon the costs they may otherwise be entitled to recover. Here there was no attempt to negotiate and that counts against the claimant.
What is also triking is that defendants still appear to be reluctant to offer mediation in cases involving suspected exaggeration or fraud. Going to mediation does not weaken your claim one iota and gives you the opportunity of putting your views directly to the claimant. That can have a sobering effect on the recipient.
What do you think? Can mediation work in fraudulent or exaggerated claims? Add a comment below.
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