ARTICLE
Continued from previous page In the somewhat more wordy and certainly more harrowing case of BXB v (1)Watch Tower and Bible Tract Society Of Pennsylvannia and (2) Trustees of the Barry Congregation of Jehovah’s Witnesses [2020] EWHC 656 (QB) an indemnity costs award was likewise meted out for a failure to engage in ADR. Similarly in Wales (t/a Selective Investment Services) v CBRE Managed Services Ltd & Anor [2020] EWHC 1050 (Comm) which concerned pensions and commissions, a costs sanction was imposed for refusing to mediate. The tide is certainly turning strongly in favour of mediation as the go to platform for parties and solicitors alike and a number of commentators have referred to this being a watershed moment although the writing has been on the wall for some time. In Thakkar v Patel [2017] EWCA Civ 117 Lord Justice Jackson at para 31 stated: “The message which this court sent out in PGF II was that to remain silent in the face of an offer to mediate is, absent exceptional circumstances, unreasonable conduct meriting a costs sanction, even in cases where mediation is unlikely to succeed. The message which the court sends out in this case is that in a case where bilateral negotiations fail but mediation is obviously appropriate, it behoves both parties to get on with it. If one party frustrates the process by delaying and dragging its feet for no good reason, that will merit a costs sanction. In the present case, the costs sanction was severe, but not so severe that this court should intervene.” More sanctions for the unwary will certainly follow. It has become increasingly clear that judicial efforts to get parties to negotiate rather than litigate have moved away from the carrot towards the stick. Commentators have described it as a “relentless push towards mediation.”
As the Directive further states at Para 17: “The Government would strongly encourage parties to seek to resolve any emerging contractual issues responsibly – through negotiation, mediation or other alternative or fast-track dispute resolution – before these escalate into formal intractable disputes.” There is both judicial and political will to bring about a new way of doing things whether through telephone or video hearings or pro-active encouragement of negotiation and ADR. There are already significant court backlogs and in a socially distanced world cases will invariably take longer. Parties will be required to make genuine attempts to resolve their dispute and are likely to face tougher court sanctions if they do not. His Honour Judge Bird said that parties will be expected to “make all sensible efforts” to avoid trial. Within the wake of the above cases Offers to Mediate have even been referred to as “the new costs weapon.” Coronavirus has descended upon us clothed in a cape of fear and uncertainty, disruptive, climactic, foreboding, ushering in a sea of change but also promising opportunities for transformation. Mediation may help you shoulder the burden of client needs and expectations and move forward to a brighter and more productive future. ■
Russell Evans
Mediator Mediation Expert of the Year in the United Kingdom – GAE Award 2020
Cabinet Office Guidance On 7 May 2020 the Cabinet Office issued Guidance directed at both public authorities and private enterprise as to the conduct it would expect in relation to disputes arising out of contracts in the wake of the Coronavirus epidemic. Parties are specifically required to engage in “responsible and fair behaviour” which includes “requesting and responding to requests for mediation” (See Para 15).
Solicitors urged to respond to frozen asset list if needed
S
olicitors have just over month to check the latest HM Treasury Consolidated List of asset freeze targets to make sure they are not holding monies belonging to a client that is subject to financial sanctions. HM Treasury has given anyone who is holding frozen assets until 16 October 2020 to submit a report to the Office of Financial Sanctions Implementation (OFSI). Sanctions are an important foreign policy and national security tool and solicitors should be aware of their ongoing responsibilities. The profession needs to comply with financial sanctions in place in the UK and to report frozen assets and other relevant information to OFSI immediately.
16 | The Bill of Middlesex
Juliet Oliver, SRA General Counsel, said: “Solicitors should be aware of their obligations under financial sanctions legislation and make sure they are not helping anyone with dubious funding streams. This risk exists for every single solicitor and law firm, whether conveyancing on the high street or handling global transactions.” “We would urge all of you to look at the review and, if a client is listed and you hold any of their assets, make a report as necessary.” All completed reports should be emailed to ofsi@hmtreasury. gov.uk using the template on the GOV.UK website, which also feature more information on financial sanctions. ■
