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Author Archives: Phil Hesketh

Police penalised for failing to mediate

The police have become the latest litigants to fall foul of the increasing willingness of the courts to apply costs sanctions against parties who unreasonably refuse to mediate.

In Laporte v The Commissioner of Police for the Metropolis the police successfully defended a claim. They asked the court for costs to be assessed in their favour on the indemnity basis and for a payment on account of £100,000 to be awarded. Instead Turner J in the High Court said:

I am satisfied that the defendant’s failure fully and adequately to engage in the ADR process should be reflected in the costs order I make…

I do not consider that the scale of the defendant’s shortcomings in the context of his failure to engage with ADR was such as to justify disentitling him from claiming any of his costs. He did ultimately win on every substantive issue and, although ADR made settlement a sufficiently likely possibility, it would have been by no means certain. Exercising the broad discretion afforded to me by the rules, I award the defendant two thirds of his costs against the claimants to be assessed on the standard basis.

The judge went through the six Halsey reasons commonly cited as grounds for reasonably refusing to mediate and discounted each in turn on the facts of the case. On the question of whether or not ADR would have been successful the judge said parties should not regard “tactical positioning” as intransigence. In other words parties frequently make statements or proposals with the aim of lowering the expectations of the other side. This does not necessarily represent the parties’ true position and is not grounds for saying a settlement is not possible so mediation is bound to fail.

This is the latest case in a recent line which has seen parties penalised for failing to adequately engage in ADR. You can download a copy of our case digest on ADR costs penalty cases here.

Unreasonable refusal to mediate

An unreasonable refusal to mediate will be punished by a costs sanction. This was re-affirmed by the Court of Appeal last year in the case of PGF II SA v OMFS Company Limited. The High Court has recently awarded indemnity costs against a defendant that persistently refused to mediate. In Garritt-Critchley v Andrew Ronnan andContinue Reading

Mediating reinsurance disputes

A typical reinsurance dispute may develop something like this: The Reinsured negotiates his reinsurance program for the coming year, considering the price, terms, coverage of the reinsurance contracts and the security of the proposed reinsurers. The broker prepares a cover note. The premium is paid, the contract wording is completed and agreed. Two years laterContinue Reading

What survey reveals about finding suitable mediator

At Expedite Resolution we are committed to providing services that the market wants. So we commissioned market researches to ask solicitors, barristers, insurers, loss adjusters, brokers and corporates to tell us what they liked and loathed about the current mediation service offerings. 70% use mediation and achieved savings The survey showed that a high proportionContinue Reading

Welcome to Expedite Resolution

We are a new mediation and dispute resolution service offering a flexible, fresh and non-formulaic approach to quicker and more cost effective claims settlement. Expedite Resolution has 12 highly independent, specialist mediators and arbitrators from the claims and insurance sectors working with individuals and organisations to settle difficult claims more quickly. Market problems identifying suitableContinue Reading