Case Law

This page sets out commentary on the more important or more interesting cases, including the seminal case of Halsey and some senior judicial comment on that case.For the serious litigator intent on keeping up to date with all cases relevant to mediation, the quarterly update provided by David Cornes on www.mediatewithcornes.co.uk cannot be bettered.

The Civil Procedure Rules ("CPR"), effective April 1999, made a number of fundamental changes in the way litigation is conducted in England & Wales, and in the mediation context these include management of cases by judges and encouragement by them to use Alternative Dispute Resolution ("ADR") where appropriate. The changes were set out in Part 1 of CPR, as follows:

• 1.1(1) These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly.
• 1.4(1) The court must further the overriding objective by actively managing cases.
• 1.4(2) Active case management includes-

(e) encouraging the parties to use an ADR procedure if the court considers that appropriate, and facilitating the use of such procedure...

The Court of Appeal interpreted this strictly in the early days, and in Cowl and Dunnett below, refused to award costs to the winning party on the grounds that they had refused to mediate because they considered they had a watertight case, even though the court agreed.

Things are not so black and white now, and Halsey provides a very useful summary of when it may be reasonable to refuse mediation. But one should note that the onus is on the losing party to show that they did act reasonably in refusing to mediate; so the party which refuses to mediate is taking a risk of losing on costs.

• Dyson & Field exors of Lawrence Twohey dec'd -v- Leeds City Council (C of A 22 Nov 1999)
• Cowl -v- Plymouth City Council [2001] EWCA Civ 1935
• Dunnett -v- Railtrack [2002] EWCA Civ 302
• McMillan Williams –v- Range [2004] EWCA Civ 294
• Halsey –v- Milton Keynes General NHS Trust [2004] EWCA 3006 Civ 576
• Daniels –v- The Commissioner of Police for the Metropolis [2005] EWCA Civ 1312
• Burchell NF –v- Mr & Mrs Bullard [2005] EWCA Civ 358
• Egan –v- Motor Services (Bath) Ltd [2007] EWCA Civ 1002
• The Article 6 obiter in Halsey
• Mr Justice Lightman’s speech
• Senior Judicial Observations

Pre-Action Protocols

To emphasise further the importance of ADR including mediation in the litigation process, attention is drawn to the Pre-Action Protocols, all of which require the parties to consider ADR; and also to the Allocation Questionnaire, which asks searching questions about whether ADR has been considered and, if not, why not.