DATE

CASE

SUBJECT

March 2012

Faidi, Hameed and  Faidi, Inam - v – Elliot Corporation - Court of Appeal - [2012] EWCA Civ 287

Encouragement to mediate - a neighbour dispute - Lord Justice Ward: “…Not all neighbours are from hell. They may simply occupy the land of bigotry. There may be no escape from hell but the boundaries of bigotry can with tact be changed by the cutting edge of reasonableness skilfully applied by a trained mediator. Give and take is often better than all or nothing.”

January 2012

PGF II SA - v - OMFS Company and Bank of Scotland PLC - Technology and Construction Court - Mr  Recorder Furst QC - [2012] EWHC 83 (TCC)

Costs Sanction - unreasonable refusal to mediate was taken into account

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 an approved note of the decision is on CEDR's web site >>).

The first instance decision of the Supreme Court Costs Office is at [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)