Land Ownership - is possession 9/10 of the law ?
Where is my Legal Boundary in relation to Property?
Although your first thought is litigation, why should you consider one of the many types of mediation services that are available?
In the case of Laporte v Commissioner of Police (2015 ) EWHC 371, the Claimant lost in a claim against the Defendant but nevertheless claimed that the Defendant should not be awarded costs because they had refused to engage in ADR (alternative dispute resolution) or any other form of mediation services.
The Appeal Court had to consider the issue as to whether the lower Court’s discretion was correct.
ADR is commonly used to describe methods of resolving disputes, other than a trial (this can include for example, a roundtable meeting in a Solicitor’s office, or engaging in actual mediation).
The Courts follow the usual test that costs should “follow the event”, which means that the winning party is entitled to payment of their costs from the losing party, subject to a Court assessment. However, the Court retains a discretion to depart from the normal rule of awarding costs to the winning party and can take into account factors such as the conduct of the parties, to what extent did the parties succeed in all part of a case and whether any offers of settlement were made during the case and any responses to those offers.
In the case of Laporte, the losing Claimant argued that the Defendant had unreasonably refused an offer to engage in any mediation services.
In considering whether a refusal to engage in ADR is reasonable, the Courts will follow the test set out in the case of Halsey v Milton Keynes, and will consider the nature of the dispute, the merits of the case, whether any other settlement has been tried, whether the costs of ADR are disproportionate, whether there has been a delay in attending ADR, which is prejudicial and would ADR have had any prospect of success.
Having gone through the tests in the Laporte case, the Appeal Court decided that the Defendant had been unreasonable in refusing ADR and this had a massive impact on the Defendant as they recovered only two third’s of their costs from the Claimant.
In the current climate of civil litigation with all its radical reforms, my advice to any client thinking of participating in litigation is that it would be extremely risky to refuse any form of ADR and even a roundtable meeting at the Solicitors’ office should be considered as a reasonable alternative.
Saul Marine is the Principal of Saul Marine and Co-solicitors and also a qualified Mediator.
