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ARTICLES
Mediation in the wake of Coronavirus Court Guidance & Cabinet Directives In the wake of coronavirus there has been a string of three cases in 2020 in which the parties who refused to mediate were financially penalised by the courts, laying down a marker for more stringent times ahead. Indeed as the Law Society has commented recent cases have provided “a very real economic incentive for parties to say ‘yes’ to mediation, because the price of saying ‘no’ has become rather costly.”
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020 has been a rollercoaster of a year from mid-winter storms and flooding to the ever emerging threat of Covid 19, court closures and social distancing. If recent WHO announcements and the previous Sars epidemic teach us anything, we are all in this very much for the long haul. Lord Burnett of Maldon, the Lord Chief Justice, has made it clear that the court system will never again operate as it did before the coronavirus pandemic. Lord Neuberger of Abbotsbury, a former President of the Supreme Court, also appeared on Radio 4’s Today programme encouraging parties to consider mediation. We will all have to acclimatise to change and new working practices. We have all seen multiple headlines about Virtual Justice and Remote Hearings. Technology certainly has been pushed to the fore not least in world of Mediation where the use of ZOOM Pro has become the industry standard and default platform for ONLINE Mediation.
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Cases Post PGF II Litigation Solicitors will be fully familiar with PGF II which is embedded in the court and pre-action practice landscape. PGF II itself came within the wake of a number of previous cases. With each new tranche of cases has come increased emphasis on the use of ADR. Amidst the clamour for the revival of the football league season another Football Club entered the legal arena and received a scolding at the hands of the courts. For local football fans fortunately this was neither Oxford, Reading nor MK Dons but rather a more distant northern cousin. In DSN v Blackpool FC [2020] EWHC 670 (QB) which concerned a somewhat delicate matter involving a football scout, a claim for sexual abuse and vicarious liability, Mr Justice Griffiths stated: “No defence, however strong, by itself justifies a failure to engage in any kind of alternative dispute resolution” echoing the words of the Court of Appeal in N J Rickard Limited v Holloway & Anor [2015] EWCA Civ (unreported) where the Court of Appeal observed that “no dispute was too intractable for mediation.”
DSN v Blackpool repeated the earlier observations of Sir Geoffrey Vos C in OMV Petrom SA v Glencore International AG [2017] EWCA Civ 195 at para 39 where he stated: “The regime of sanctions and rewards has been introduced to incentivise parties to behave reasonably, and if they do not, the court's powers can be expected to be used to their disadvantage. The parties are obliged to conduct litigation collaboratively and to engage constructively in a settlement process.” 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.”
