Win on all points and still lose 1/3 of costs for failing to mediate

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In the case of (1) JANE LAPORTE (2) NICHOLAS CHRISTIAN v COMMISSIONER OF POLICE OF THE METROPOLIS (2015)  the High Court has fired another shot across the bows to any parties to litigation who fail to engage in meaningful negotiation.

Despite successfully defending proceedings, after taking into account the factors listed in the Court of Appeal case of Halsey v Milton Keynes General NHS Trust [2004], a police commissioner was found to have failed, without adequate  justification, to have engaged in the alternative dispute resolution process, and that was to be reflected in the costs order made.

The factors that could be relevant (as set out in the Halsey case) included (i) the nature of the dispute; (ii) the merits of the case; (iii) the extent to which other settlement methods had been attempted; (iv) whether the costs of ADR would be disproportionately high; (v) whether any delay in setting up and attending the ADR would have been prejudicial; (vi) whether the ADR had a reasonable prospect of success.

In this case the court had to decide upon the costs to be awarded following its judgement in proceedings brought by the claimants for damages for assault, battery, false imprisonment and malicious prosecution against the defendant police commissioner.

The  claimants’ proceedings were unsuccessful, but they argued that there should be no order for costs because the commissioner had refused to engage in alternative dispute resolution (ADR). The commissioner had, in the allocation questionnaire to the proceedings, declined the opportunity to attempt to settle. He failed to respond to a formal offer of mediation from the claimants despite a court order to do so. After further approaches, he offered to meet the claimants in a mediation hearing to narrow the issues for trial, but arrangements had still not been concluded nine months later. The claimants informed him that because of his refusal to engage in ADR they intended to invite the court not to award costs in his favour. The commissioner claimed to have formed the impression that the claimants considered a money offer to be a prerequisite to compromise. He sought costs from the claimants, to be assessed on an indemnity basis.

The commissioner was awarded two thirds of his costs to be assessed on the standard basis. Indemnity costs were not ordered. The decision concerning participation in the ADR process did not influence that decision. The adverse findings on the conduct of some of the police officers involved and the reasonable way in which the claimants had presented their claim procedurally militated against that. Also, public bodies should not normally have a stronger claim to indemnity costs than other litigants.

This case is a useful reminder of the need to think seriously about the need to consider ADR, even if your case is a strong one. The failure to respond to the invitation to consider ADR in this case was all the more serious given the court order to do so. If a decision is made not to engage in ADR then at the very least it will need to be backed up with cogent reasoning.