Daniels –v- The Commissioner of Police for the Metropolis [2005] EWCA Civ 1312

This case did not directly involve mediation, but their lordships made comments which strongly supported that process. The case is a good illustration, per Halsey, of where a party is justified in refusing other forms of ADR, in this case to accept a Part 36 offer.

Miss Daniels was a PC in the mounted division at Great Scotland Yard. On a training course she was thrown from a horse. Her damages were agreed at £7,000, but liability was contested.

The claimants had made a series of Part 36 offers at reducing sums, but the defendants repeatedly said they refused to negotiate. They had two grounds: that Miss Daniels was also engaged in litigation against the Met for bullying and harassment at work, and that to make a concession here would put them in a weak position with that other case; and that the Met had in recent years received 17 claims from this small Mounted Branch, and felt that 'the grapevine' would work against them. As the judge at first instance had said:

"As the court will no doubt appreciate this [being thrown by a horse] is very much an occupational hazard in this area of work, with a number of similar accidents occurring each year. Were they to concede liability in this case it would, in their view, only result in a flood of claims from other officers who experienced a similar misfortune to the claimant."

In coupling mediation with Part 36 offers, Dyson LJ said this:

"Although no question of mediation has been raised in the present case, in my judgment the same general approach should be adopted. I do not see how an unsuccessful claimant can show that a successful defendant acted unreasonably simply on the grounds that he refused to accept the Part 36 offer."

Ward LJ was more forthright. In drawing attention to costs of £50,000 in a case where the agreed damages were only £7,000, he first said: "It is hard to resist the temptation to say that the costs incurred are disproportionate to the sum in issue." He then went on to say this:

"If the parties reasonably believe that they have a real prospect of success each is entitled fully and properly to advance his or her case or defence but neither can then complain that the fight is taken to the bitter end of a judgment of the court. Each will have to accept that those who live by the sword must risk dying by the sword as well. That is the inevitable risk of litigation."

"What can the court do to prevent what, to those outside the litigation, may seem like an unseemly, or at least uncommercial, squabble? We can and we do encourage mediation, the earlier the better. It does have an extraordinary knack of producing compromise, even where the parties appear, at the start, to be intractably opposed. The profession is encouraged to do what habitually it does do, namely try and settle the case."

Key phrases: "we can and we do encourage mediation" – "the earlier the better" – "it does have an extraordinary knack of producing compromise."

But here, because the defence were justified in refusing the Part 36 offers, the claimant lost on costs.