Judge's Bite Over Failure to Engage in Mediation
20th April 2020

“If a party wants to fight over every blade of grass when there is a perfectly sensible offer of mediation then they can sing for their costs so far as I’m concerned!” So said the Adjudicator in the Lands Tribunal to the winner in a boundary dispute Derek Marshall fought out several years ago (Derek was for the aggrieved loser) but it is only more recently that the Courts have such a robust attitude to a failure to engage constructively in mediation.

Two recent decisions illustrate the point. In DSN v Blackpool Football Club Ltd [2020] EWHC 670 the Claimant sought damages for historical sexual abuse by a scout previously employed by the club and made several settlement offers including a proposal to enter into negotiations. He was met with a blank refusal on the grounds that the Defendant believed it had a strong defence. (The underlying case is also interesting on the law of vicarious liability). The Defendant also failed to comply properly with a directions order to consider resolution by mediation or to file a sufficient statement explaining why it would not do so: It simply filed a statement standing by its confidence of success in defending the claim.

Mr Justice Griffiths was singularly unimpressed. It ought to have been clear that the Claimant was not motivated by money but was primarily concerned to receive an acknowledgment of what had happened to him. The Judge thought that no defence, however strong, by itself justifies a failure to engage in mediation. Disputes may often be resolved satisfactorily to all parties this way and settlement allows solutions which are potentially limitless in their ingenuity and flexibility even if they do not necessarily require an admission of liability or a payment of money. The failure to engage amounted to litigation (mis)conduct and justified an indemnity costs order from shortly after the direction to consider mediation.

Two weeks before that decision, Mr Justice Chamberlain was similarly concerned with the Defendant’s failure to engage in mediation in BXB v Watch Tower & Bible Tract Society [2020] EWHC 656. This was another abuse case where the Defendant had neglected to engage with an order to consider mediation. No real effort was made to try to settle the case. In making an indemnity costs order for part of the proceedings, the judge reminded himself of His Honour Judge Waksman QC’s observations in Garritt-Critchley v Ronnan [2014] EWHC 1774 that an unreasonable refusal to engage in ADR may justify an award of indemnity costs to a claimant even where the Claimant recovers very substantially less than originally claimed because “parties often don't know whether in truth they are too far apart unless they sit down and explore settlement”.

In these Covid times we may expect more decisions like these and the impetus for mediation has never been greater.

College Chambers offers remote services to help your client resolve disputes during these challenging times.

We are able to offer your clients the following remote services:

  • IFLA Family Finance Arbitrators
  • IFLA Children Act Arbitrators
  • Chartered Civil Arbitrators
  • Private FDRs
  • Accredited Mediators
  • Private Pre-Trial Settlement Hearings
  • Civil Dispute Determination

To speak to us in more details about these services please contact us on 023 8023 0338.

You can contact all of our barristers directly by e-mail on initialsurname@college-chambers.co.uk.

Head of Chambers Derek Marshall is a qualified Civil Disputes Mediator and has been involved in resolving hundreds of disputes through mediation. Derek is also an IFLA Arbitrator and is accredited Family Finance Arbitrator.

Derek can be contacted at DMarshall@college-chambers.co.uk

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