DATE

CASE

SUBJECT

February 2011

Rolfe -v- De Guerin - Court of Appeal - [2011] EWCA Civ 78

Costs Sanction - offers to enter into settlement negotiations or mediation were unreasonably refused

March 2010

Brookfield Construction (UK) Limited (formerly Multiplex Constructions (UK) Limited) and Mott Macdonald Limited - Technology and Construction Court - Mr Justice Coulson - [2010] EWHC 659 (TCC)

Encouragement to mediate - in circumstances where Mott’s cost estimate to the end of a sub-trial was £27,494,500 and Brookfield’s was £45,695,000, a total cost estimate of £73,189,500

March 2010

Elliott Group Limited and Others -v- GECC UK and Others - Technology and Construction Court - Mr Justice Coulson - [2010] EWHC 409 (TCC)

Adjournment of trial  - application for various reasons, including to permit time for mediation - application refused

February 2010

Gill, Dr Christine -v- Stephen Woodall, Stanley Lonsdale and the Royal Society for the Prevention of Cruelty to Animals - Chancery Division - Mr James Allen QC (Deputy High Court Judge) - Press comment (The Times) >>

In the Court of Appeal, the decision of the Judge was upheld, albeit on different grounds and the costs issue was not argued >>

Costs Sanction - the RSPCA’s reluctance to mediate the case was described as “unreasonable” and indemnity costs were ordered against the RSPCA on part of the claim

November 2009

Fitzroy Robinson Limited -v- Mentmore Towers Limited and Fitzroy Robinson Limited -v- Goodstart Limited and Anglo Swiss Holdings Limited (No. 2)  Technology and Construction Court - Mr Justice Coulson - [2009] EWHC 3070 (TCC)

Adjournment of trial  - application for various reasons, including to permit time for mediation - application refused

August 2009

Corby Group Litigation -v- Corby District Council - Technology and Construction Court - Mr Justice Akenhead - [2009] EWHC 2109 (TCC)

Costs sanction - consideration, post Halsey, as to whether or not there had been an unreasonable refusal to mediate

July 2009

Fitzroy Robinson Limited -v- Mentmore Towers Limited and Fitzroy Robinson Limited -v- Goodstart Limited and Anglo Swiss Holdings Limited - Technology and Construction Court - Mr Justice Coulson - [2009] EWHC 1552 (TCC)

Lack of mediation - criticism - The Judge said that mediation would have narrowed the issues and avoided the need to deal in a public court with whether one or other of two witnesses must not be telling the truth

June 2009

Roundstone Nurseries Limited -v- Stephenson Holdings Limited - Technology and Construction Court - Mr Justice Coulson - [2009] EWHC 1431 (TCC)

Costs of mediation incurred pre-action - costs thrown away by refusal to attend a  mediation agreed as part of the Pre-Action Protocol procedure can be recoverable

For an article, click here >>

May 2009

Farm Assist Limited (In Liquidation) -v- The Secretary of State for the Environment Food and Rural Affairs (No. 2) - Technology and Construction Court - The Hon. Mr Justice Ramsey - [2009] EWHC 1102 (TCC)

Compelling mediator's attendance at court - mediator's application to set aside witness summons refused - exceptional circumstances - discussion of the law relating to confidentiality and privilege in mediation

See Mediation Update, June 2009 >> and see an article >>

May, 2009

Siemens Building Technologies FE Limited -v- Supershield Limited - Technology and Construction Court - The Hon. Mr Justice Ramsey - [2009] EWHC 927 (TCC)

Reasonableness of a mediated settlement - relevance to claims against another party which was not a party to the settlement

December 2008

Balfour Beatty Construction Northern Limited –v- Modus Corovest (Blackpool) Limited  – Technology and Construction Court – Mr Justice Coulson - [2008] EWHC 3029 (TCC)

Agreement to mediate disputes - enforceability of agreement - necessity of mandatory obligation - other considerations as to ordering a stay of proceedings - see Mediation Update February 2009 >>

December 2008

Farm Assist Limited (In Liquidation) -v- Secretary of State for Environment Food and Rural Affairs - Technology and Construction Court - Mr Justice Ramsay - [2008] EWHC 3079 (TCC)

Privilege - where a court is asked to set aside a mediated settlement on the grounds of economic duress, there is no implied waiver of legal advice by the claimant

September 2008

Multiplex Constructions (UK) Limited - v- Cleveland Bridge UK Limited and Cleveland Bridge Dorman Long Engineering Limited - Technology and Construction Court - Mr Justice Jackson - [2008] EWHC 2220 (TCC)

Encouragement to mediate

April 2008

Cumbria Waste Management Limited, Lakeland Waste Management Limited and Baines Wilson (a Firm) - High Court - Her Honour Judge Frances Kirkham sitting as a High Court Judge - [2008] EWHC 786 (QB)

Privilege, Confidentiality and Mediator Privilege - Defendant solicitors to a negligence action in relation to contract drafting work were refused disclosure of mediation papers in circumstances where the other party to the mediation, DEFRA, objected. DEFRA were not a party to the litigation but appeared at the hearing. Acknowledgement that Mediators may have privilege in their own papers. See Mediation Update May 2008 >>

March 2008

Lobster Group Limited -v- Heidelberg Graphic Equipment Limited and Close Asset Finance Limited - Technology and Construction Court - Mr Justice Coulson - [2008] EWHC 413 (TCC)

Costs of mediation incurred pre-action - application for security for costs - not "costs of and incidental to the proceedings" under Section 51, Supreme Court Act, 1981 - costs not recoverable

March 2008

Malmesbury (Earl of) and Strutt & Parker and Anor - High Court - Mr Justice Jack - [2008] EWHC 424 (QB))

Costs sanction - where both parties are unreasonable in a mediation, there is no costs sanction. However, one party acting unreasonably would be in the same position as a party refusing to mediate and, therefore, at risk of a cost sanction. Note that privilege was waived by both parties.

January 2008

Nigel Witham Limited v Robert Smith and Jacqueline Isaacs (No. 2) - Technology and Construction Court - His Honour Judge Peter Coulson QC - [2008] EWHC 12 (TCC)

Costs sanction - a party who succeeds in litigation may be prevented from recovering some of their legal costs from the other party if the successful party had unreasonably delayed a mediation - no such order was made on the facts of this case

December 2007

Ruttle Plant Hire –v- The Secretary of State for the Environment and Rural Affairs – Technology and Construction Court – Mr Justice Ramsay – [2007] EWHC 2870 (TCC)

Economic duress - setting aside mediated settlement agreement - preliminary issues only - see  Mediation Update, January 2008 >> See also an article in Building: "Keeping mum about mediation" >>

October 2007

Egan -v- Motor Services (Bath) Limited - Court of Appeal - [2007] EWCA Civ 1002

Encouragement to mediate - the parties spent in the region of £100,000 arguing over a claim which was worth about £6,000.  

July 2007

Cattley (Frank David George) and Pollard (Linda Jane) - Master Bragge - Chancery Division - BAILII Citation No. [2007] EWHC B16 (Ch)

Privilege - disclosure to a third party, not a party to the mediation, was ordered - intervention in the proceedings by the mediator as to mediation privilege

April 2007

Chantrey Vellacott -v- The Convergence Group PLC and Others - High Court - Mr Justice Rimer -  [2007] EWHC 1774 (Ch)

Costs of mediation after proceedings started - recoverable - court decided who should pay  by looking at conduct in the mediation, the parties having waived privilege for that purpose

May 2007

Framlington Group Limited and Anor –v- Ian Barnetson - Court of Appeal [2007] EWCA Civ 502

Privilege - refusal to allow a party to rely on matters discussed in without prejudice meetings (not in a mediation)

May 2007 on appeal from the earlier decision in November 2006

National Westminster Bank PLC -v- Thomas James Feeney and Linda Catherine Feeney - Appeal to Mr Justice Eady sitting with Assessors in May 2007 (Appeal unreported but noted on CEDR's web site >>). The first instance decision of the Supreme Court Costs Office - [2006] EWHC 90066 (Costs) >>

Costs of mediation after proceedings started - are they recoverable on later assessment?

See Mediation Update, July 2007 >>

March 2007

Brown -v- Rice and Patel and ADR Group - Chancery Division - [2007] EWHC 625 (Ch)

Privilege - without prejudice negotiations - can the court look at negotiations in a mediation to see whether there was a concluded settlement?

Mediation Agreement - can there be a settlement if it is not recorded in writing and signed by the parties? See Mediation Update April 2007 >>

December 2006

Aird and Another -v- Prime Meridian Limited - Court of Appeal - [2006] EWCA Civ 1866  

Privilege in agreed experts' statement used in mediation does not exist -  see Mediation Update January 2007 >>

November 2006

P4 Limited -v- Unite Integrated Solutions PLC - Technology and Construction Court - Mr Justice Ramsey - [2006] EWHC 2924 (TCC)

Costs sanction - how to approach the analysis as to whether there was or was not an unreasonable refusal to mediate and whether a cost sanction should be imposed

June 2006

Multiplex Constructions (UK) Limited v Cleveland Bridge UK Limited and Cleveland Bridge Dorman Long Engineering Limited - Technology and Construction Court - [2006] EWHC 1341 (TCC)

Encouragement to mediate - after a trial on preliminary issues

March 2006

IDA Limited and Others –v- University of Southampton and Others - Court of Appeal - [2006] EWCA Civ 145

Encouragement to mediate - costly litigation over who owned a patent - see Mediation Update July 2006 >>

January 2006

Burne, Dr SR –v- “A” - Court of Appeal - [2006] EWCA Civ 24

Encouragement to mediate - before the re-trial of a professional negligence claim against a Doctor - see Mediation Update July 2006 >>

November 2005

Hall and Another –v- Pertemps Group Limited and Another – High Court, Chancery Division, Mr Justice Lewison - reported in The Times on 23 December 2005 (click here >> for The Times’ chargeable service) or see [2005] ADR LR 11/01

Costs - without prejudice and Part 36 offer - see Mediation Update, January 2006 >>

May 2005

Venture Investment Placement Limited -v- Hall - His Honour Judge Reid QC - [2005] EWHC 1227 (Ch) - Unreported

Confidentiality /without prejudice - alleged threats made during a mediation - whether or not outside the mediation to be determined at trial - in the meantime, injunction granted to maintain confidentiality - see Mediation Update September 2005 >>

April 2005

Burchell NF -v- Bullard, Mr & Mrs, & Others - Court of Appeal - [2005] EWCA Civ 358

Costs sanction - following failure to agree to mediate at a time before the start of litigation - application of Halsey principles - see Mediation Update June 2005 >>

July 2004

Reed Executive PLC and Another -v- Reed Business Information Limited and Others - Court of Appeal - [2004] EWCA Civ 887

Costs sanction - consideration, post Halsey, as to whether or not there had been an unreasonable refusal to mediate - consideration of "without prejudice" rule as to disclosure of documents going to consideration of any refusal to mediate

May 2004

Couwenbergh v Valkova - Court of Appeal - [2004] EWCA Civ 676

Costs sanction - court draws attention in clear terms to the parties and the Legal Services Commission of a failure to mediate despite encouragement to do so (following the decision in Halsey)

May 2004

Halsey -v- Milton Keynes General NHS Trust and Steel -v- Joy and Halliday - Court of Appeal - [2004] EWCA Civ 576

Costs sanction following failure to agree to mediate - principles to be applied; compulsion by court to mediate - mediation will not be forced on parties (but there may be cost sanctions)

March 2004

McMillan Williams -v- Range - Court of Appeal - [2004] EWCA Civ 294

Costs sanction - following the exhortation to mediate of lower tier Judge

February 2004

Shirayama Shokusan Company Ltd v Danovo Ltd (No 2) - Mr Justice Blackburne - [2004] EWHC 390 (Ch) - Unreported

Attendance - Court order  requiring attendance of particular people at mediation? - The court held that it had jurisdiction, in order to render a court-ordered mediation efficacious, to order a party to be adequately represented at the mediation; but it would be an exorbitant exercise of jurisdiction to direct by whom the Claimants should be represented.  

December 2003

Shirayama Shokusan Company Limited and Others -v- Danovo Limited - Mr Justice Blackburne - [2003] EWHC 3006 (Ch)

Compulsion by court to mediate - order to mediate made against unwilling party (but now see Halsey)

May 2003

Royal Bank of Canada -v- Secretary of State for Defence (link with acknowledgements to CEDR) - Mr Justice Lewison - [2003] EWHC 1841 Ch

Costs sanction - government pledge for ADR not followed (but now see Halsey)

March 2003

Leicester Circuits Limited -v- Coates Brothers PLC - Court of Appeal - [2003] EWCA Civ 333

Costs sanction - party withdrew from mediation after appointment of mediator and delivery to him of submissions (but now see Halsey)

November 2002

SITA -v- Watson Wyatt and Maxwell Batley (A Firm) (link with acknowledgements to CEDR) - Mr Justice Park - [2002] EWHC 2401 (Ch)

Costs sanction following failure to agree to mediate - not applied on grounds that mediation was not appropriate on these facts (but now see Halsey)

October 2002

Cable & Wireless PLC -v- IBM United Kingdom Limited - Mr Justice Colman -  [2002] EWHC 2059 (Comm)

Agreement to mediate disputes - enforceability of agreement - adjournment of application until after mediation

October 2002

Thakrar (Kirit Lalji) -v- Ciro Citterio Menswear PLC (In Administration) - The Vice Chancellor - [2002] EWHC 1975 Ch

Insolvency -  agreement reached in mediation - enforceable (changing the  decision in Thakrar -v- Thakrar - Court of Appeal - [2002] EWCA Civ 1304)

May 2002

Hurst -v- Leeming - Mr Justice Lightman - [2001] EWHC 1051 (Ch)

Costs sanction following failure to agree to mediate - not applied on grounds that mediation was not appropriate on these facts (but now see Halsey)

February 2002

Dunnett (Susan) -v- Railtrack PLC - Court of Appeal [2002] EWCA Civ 302

Costs sanction following failure to agree to mediate (but now see Halsey)

December 2001

Cowl and Others -v- Plymouth City Council - Court of Appeal - [2001] EWCA Civ 1935

Costs sanction - court draws attention in clear terms to the parties and the Legal Services Commission of a failure to mediate despite encouragement to do so (following the decision in Halsey)

August 1999

Kinstreet Limited and Another -v- Balmargo Corporation Limited and Others - Chancery Division - The Honourable Mrs Justice Ardern (acknowledgements to CEDR for the link to the judgment)

Compulsion by court to mediate - order to mediate made against unwilling party (but now see Halsey) - origin of "Kinstreet" Orders

July 1999

Muman (Sat Pal) and Others -v- Bhikku Nagasena - Court of Appeal - [1999] EWCA Civ 1742

Stay of court proceedings for reasons unconnected with mediation - ordered not to be lifted until after attempt made to resolve disputes by mediation (but now see Halsey)