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Mediation Case Law by Subject

Adjournment Agreement to mediate Attendance Compulsion to mediate
Costs Economic duress Encouragement to mediate Government Pledge
Insolvency Lack of Mediation Privilege Reasonableness of Settlement
Settlement Agreement Stay of Court Proceedings     

Subject
 Case  Date  Update
Adjournment      
       
Adjournment of trial Application for various reasons, including to permit time for mediation - application refused.

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

March 2010 

 

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

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)
 November 2009  
       
Agreement to mediate disputes      
     

Agreement to mediate disputes prior to arbitration - unenforceable - no mediation procedure/rules in the agreement - cf Cable & Wireless PLC -v- IBM United Kingdom Limited - Mr Justice Colman -  [2002] EWHC 2059 (Comm).

Sulmérica CIA Nacional de Seguros SA -v- Enesa Engenharia SA - Court of Appeal - [2012] EWCA Civ 638 

May 2012  

Agreement to mediate disputes - enforceability of agreement - necessity of mandatory obligation - other considerations as to ordering a stay of proceedings.

Balfour Beatty Construction Northern Limited –v- Modus Corovest (Blackpool) Limited  – Technology and Construction Court – Mr Justice Coulson - [2008] EWHC 3029 (TCC) December 2008 see Mediation Update February 2009

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

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

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.

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

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.

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)

May 2009  See Mediation Update, June 2009 and see an article
       
Compulsion to mediate      
       

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

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

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

Shirayama Shokusan Company Limited and Others -v- Danovo Limited - Mr Justice Blackburne - [2003] EWHC 3006 (Ch) (acknowledgements to CEDR for the link to the judgment)  December 2003  

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

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)  August 1999  
       
Costs
     
       
Costs - without prejudice and Part 36 offer.

Hall and Another –v- Pertemps Group Limited and Another – High Court, Chancery Division, Mr Justice Lewison - reported in The Times on 23 December 2005 or see [2005] ADR LR 11/01

 November 2005 See Mediation Update, January 2006

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

  

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) >>

 May 2007 on appeal from the earlier decision in November 2006 See Mediation Update, July 2007

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.

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

 April 2007  
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

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

June 2009

 

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.

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

 March 2008  

Costs Sanction - not applied - in circumstances where there was an unreasonable refusal to mediate but that was not the only consideration - there had been a without prejudice save as to costs that had to be balanced against the unreasonable refusal.

Northrop Grumman Mission Systems Europe Limited -v- BAE Systems (Al Diriyah C4I) Limited - Technology and Construction Court - Mr Justice Ramsey - [2014] EWHC 3148 (TCC) 

 October 2014  

Costs Sanction - unreasonable refusal to mediate results in costs sanction - indemnity costs ordered.

Garritt-Critchley, Phillip and Others -v- Andrew Ronnan and Solarpower PV Limited - Chancery Division, Manchester - [2014] EWHC 1774 (Ch)

 February 2014  

Costs Sanction - an offer to enter into mediation was not unreasonably refused and no cost sanction was applied.

ADS Aerospace Limited -v- EMS Global Tracking Limited - Technology and Construction Court - Mr Justice Akenhead - [2012] EWHC 2904 (TCC) 

October 2012


Costs sanction - the defendant successfully defended a claim in negligence. Its refusal to mediate, on the grounds that the claimant’s case had been without merit, was held to be a reasonable refusal and no costs sanction was imposed.

Swain Mason & Others -v- Mills & Reeve (a Firm) - Court of Appeal - [2012] EWCA Civ 498.

April 2012

 

Costs Sanction - failure to reply to invitations to mediate will, as a general rule, of itself be unreasonable - decision at first instance (see January 2012 below) was upheld.

PGF II SA -v- OMFS Company -  Court of Appeal - [2013] EWCA Civ 1288.

 October 2013  

Costs Sanction - unreasonable refusal to mediate was taken into account - see Court of Appeal decision at October 2013 above.

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

 January 2012  

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

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

February 2011

 

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.

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).  

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

 January 2010  

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

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

 August 2009  

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.

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

 March 2008  

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.

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).

January 2008

 

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.

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

November 2006

 

Costs sanction - following failure to agree to mediate at a time before the start of litigation - application of Halsey principles.

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

 April 2005 see Mediation Update June 2005

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.

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

July 2004

 

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).

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

 May 2004  

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).

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

 May 2004  

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

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

 March 2004  

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

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

 May 2003  

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

 

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

March 2003

 

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

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

November 2002

 

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

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

May 2002

 

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

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

February 2002

 

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).

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

December 2001

 
       
Economic Duress      
       

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." >>

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)

December 2007 

 

     
Encouragement to mediate      
     

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.”

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

 March 2012  

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.

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

 March 2010  

Encouragement to mediate

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)  September 2008  

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

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

 October 2007  

Encouragement to mediate - before the re-trial of a professional negligence claim against a Doctor.

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

January 2006

see Mediation Update July 2006

Encouragement to mediate - costly litigation over who owned a patent.

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

 March 2006 see Mediation Update July 2006

Encouragement to mediate - after a trial on preliminary issues.

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

June 2006

 
Government Pledge      
       

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

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

 May 2003  
       
Insolvency      
       

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

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

October 2002  

“Kinstreet Orders” - origin of

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).


August 1999

 
       
Lack of Mediation      
       

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.

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).

July 2009

 
       
Privilege      
       

Privilege - without prejudice negotiations - Canadian law - can a Canadian court look at negotiations in a mediation to see whether there was a concluded settlement? Common law privilege can be excluded by clear drafting in the mediation agreement.

Union Carbide Canada Inc & Dow Chemical Canada Inc -v- Bombadier Inc and Others and the Attorney General of British Columbia - Supreme Court of Canada - 2014 SCC 35.

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May 2014

For a discussion, see Mediation Update June 2014

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?

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

March 2007

See Mediation Update April 2007

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.

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). 

December 2008

 

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.

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). 

April 2008

See Mediation Update May 2008

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.

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

July 2007  

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

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

May 2007

 

Privilege in agreed experts' statement used in mediation does not exist.


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

December 2006

see Mediation Update January 2007
       

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.

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

May 2005

see Mediation Update September 2005
       
Reasonableness of a mediated settlement      
       

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

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

May 2009

 
       
Settlement Agreement      
       

Settlement Agreement - on the facts, the Judge found that the mediation had ended on the date fixed for the mediation even though the mediator continued to be involved thereafter until a settlement reached. On that basis, the Judge found that the requirement in the mediation agreement that the settlement had to be in writing and signed before it was binding did not apply and he went on to decide that there was a settlement here in telephone calls through the mediator.

AB & AB -v- CD Limited - Technology and Construction Court - Mr Justice Edwards-Stuart - [2013] EWHC 1376 (TCC).

April 2013

 

Settlement Agreement - a settlement in writing at a mediation required an employer to pay an employee the amount of £1.35 million. No mention was made in the agreement of income tax or who was to pay it. The employer paid £676,822.84 to the employee and £673,177.16 to HMRC as income tax. The employee did not succeed in persuading the court that he should have received £1.35 million (and that the employer should pay a further similar additional amount to HMRC). If the settlement agreement had included wording as to the tax position the litigation would have been avoided (assuming that the draft settlement would have survived inter-party discussion about that issue).

Barden, Michael Kieran -v- Commodities Research Unit International (Holdings) Limited, CRU Strategies Limited, CRU International Limited and CRU Publishing Limited - Chancery Division - [2013] EWHC 1633 (Ch)

June 2013

 

Settlement Agreement - solicitor had no duty to ensure that the mediation ended in an immediate binding agreement (as opposed to one which was subject to further negotiation and perfection at a later date) - the mediation process needs maximum flexibility


Frost, David -v- Wake Smith and Tofields Solicitors - Court of Appeal  - [2013] EWCA Civ 1960. 

June 2013

 
       
Stay of court proceedings      
       

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).

Muman (Sat Pal) and Others -v- Bhikku Nagasena - Court of Appeal - [1999] EWCA Civ 1742 (acknowledgements to CEDR for the link to the judgment) 

July 1999