UK: ‘‘Happy Litigators …Happy Mediators’’ The Court of Appeal Mediates

Last Updated: 21 December 2004

Article by Graham Dickinson and Claire Bowler

Originally published in the summer edition of BLG Insurance Law Quarterly

In classic law student legal textbook tradition, no one could have anticipated the impact on the UK Litigation and Mediation scene that the sad death of an elderly and seriously ill man in Milton Keynes General Hospital would have. Why is it that the apparently innocuous and small value claims always seem to lead to a fundamental realignment of the law and, in this particular case, clarification of the CPR.

In Halsey v Milton Keynes General NHS Trust, and in a subsequently linked case of Steel v Joy, the Court of Appeal was asked to give guidance on the issue of the relationship of ADR and Mediation in the Civil Litigation arena.

Since the well publicised case of Dunnett v Railtrack (2002) and subsequently Hurst v Leeming (2002), Litigators, Mediators and the Courts have been confused as to the proper way for mediation to be pursued and encouraged as an alternative to what is perceived to be expensive, time consuming and adversarial litigation.

Ever since Lord Woolf first considered his reforms of Civil Litigation and since the inception of the CPR, the Courts have sought to divert litigators away from the Court process and into mediation. However litigators with weak cases seeking to protect their client’s position financially have offered mediation as a tactical ploy either to try to force unwilling Defendants into nuisance value settlements or to deprive a successful Defendant at trial of his costs, arguing that the Defendant had unreasonably refused to mediate the claim.

This type of tactical approach had become a serious concern for many Defendants, insurers and public bodies, such as the National Health Service and in a strongly worded judgment, the Court of Appeal recognised this problem and indeed, in the Halsey case, were sharply critical of the conduct of the Claimant’s Solicitor for the use of such tactics.

Taking submissions not only from the parties involved in the two test cases but also from other external interested bodies such as the Law Society, the Court of Appeal sought to emphasise that they were not seeking to overturn Dunnett but instead were setting down clear and practical guidelines to clarify the relationship between mediation and the litigation process for the benefit of all.

As with Lord Woolf, the Court recognised the vital role that mediation has in dispute resolution and made it clear that the Courts would positively encourage parties to use mediation in the resolution of their dispute. In doing so, however, the Court emphasised that there was a balance to be struck in each case and, fundamentally, mediation is not necessarily a panacea to cure all ills. It only works where both parties adopt a consensual approach to the mediation process. For the Court to order parties to mediate would be wrong but to encourage them to consider the option of mediation must be right. In recognising that coercion does not work, the Court also recognised that blackmail does not work either and parties should be free to make reasonable and properly informed decisions as to how they wish to resolve a dispute without fear of automatic cost penalties against them for refusal to mediate.

The Court went on to list relevant factors that Judges should consider in determining reasonableness but stressed that no single factor will be decisive. The factors for consideration include:- the nature of the dispute; the merits of the case; the extent to which other settlement methods have been attempted; whether the costs of ADR would be disproportionately high to the overall value of the claim; whether ADR would delay the trial of the action; and whether ADR had a reasonable prospect of success.

In both of the cases before them the Court upheld the trial Judge’s view that the conduct of the successful party in each case had been reasonable. The unsuccessful litigants had failed to discharge the burden of proving unreasonable refusal to mediate in the attempt to avoid having to pay costs. In reaching this view and setting out these short and simple guidelines, the Court of Appeal has not signalled the demise of mediation but, rather, has developed the opportunity provided by the CPR for litigants to resolve their disputes in a manner where a sensible and consensual approach is to be seen as the way forward, rather than Court imposed directions.

Mediators have much to be pleased about from this decision. They will be dealing with consenting parties to the process of mediation, rather than reluctant and unwilling victims. Litigators are equally happy as it remains the case that if parties are sensible then most cases will settle but in that small percentage of cases where an issue does fall to be decided by the Courts, then the successful litigant should not be penalised in costs for having exercised his right to trial.

Graham Dickinson & Claire Bowler acted for Milton Keynes NHS Trust.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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