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Alan Valentine v Kevin Allen, Simon John Nash, Alison Nash [2003] ADR.L.R. 07/04
Failure to mediate : Costs : Multi-party action about land rights related to a housing development : Failure to mediate attributed to all parties : Costs followed the event 70:30 on the facts. CA. 9th October 2002.
by Laws LJ; Arden LJ; Crown Copyright

Anufrijeva v London Borough of Southwark [2003] ADR.L.R. 10/16
Human Rights Art VII : ADR : Applications for JR, following Cowl will only be approved if either alternative processes have been exhausted or a valid reason given for not using them. 16th October 2003
by Lord Chief Justice, Master of the Rolls, Auld LJ. Crown Copyright

Assicurazioni Generali SpA v CGU International Insurance Plc [2003] ADR.L.R. 05/02
Insurance : Follow settlement clause : examination of scope of follow on clause : can the court re-examine the settlement to determine whether or not it was an exgratia payment or a genuine settlement : yes - but only with a full trial and discovery - cannot be done on the hoof as a mini-trial : Gavin Kealey QC sitting as a Deputy High Court Judge : 2nd May 2003
by Gavin Kealey QC : Crown Copyright

Baddeley v Barker [2003] ADR.L.R. 05/07
Nuisance Action between neighbours : Court strongly recommeded mediation to limit costs and aggravation. CA. 7th May 2003.
by Ward LJ; Buxton LJ; Mance LJ. Crown Copyright

Berry Trade Ltd v Moussavi [2003] ADR.L.R. 05/22
Without prejudice : Could recollections of things said at without prejudice meetings be used to establish subsequent perjury? Held : The exceptions to the privilege are limited to proof of previous perjury and do not extend to a risk of perjury in the future. CA. 22nd May 2003.
by Peter Gibson LJ; Tuckey LJ; Mr Justice Nelson. Crown Copyright

Beta Investment SA v Transmedia Europe [2003] ADR.L.R. 05/12
Parties agreed to "best endeavours" to resolve a dispute. Did this impose an obligation to resolve the dispute? Held : no - only to try - failing which the legal rights became enforceable. Deputy Judge H.Ct. 15th December 2003.
by Mr Justin Fenwick QC : Crown Copyright

CEL Group Ltd. v Nedlloyd Lines UK Ltd. [2003] ADR.L.R. 11/26 & 12/18
Costs : Indemnity : Part 36 Offer beaten at 1st instance & on appeal : CA : 26th November & 18th December 2003.
by Waller LJ, Hale LJ, Carnwath LJ. Crown Copyright

Connell M Fanning v University College Cork [2003] ADR.L.R. 10/22
Claim that mediation appointment contrary to terms of contract and the mediation procedure flawed. Court held point 1 a valid issue to be considered by the court. Claimant had to prove his case. But regarding point 2, the court would not scrutinize the mediation process. 22nd October 2003
by Master of the High Court, Ireland.

Corenso (UK) Ltd v The Burnden Group plc [2003] ADR.L.R. 07/01
Costs : ADR includes negotiation and mediation : B engaged in mediation but C made strenuous efforts to settle : B who won a minor counterclaim nontheless held liable for costs. 1st July 2003
by His Honour Judge Reid Q.C. Crown Copyright

Daejan Investments Ltd v The Part West Club Ltd (part 20) Buxton Associates [2003] ADR.L.R. 11/03
A failure to comply with the protocols had removed the scope for settlement negotiations. Whilst an application for amendment of pleadings was granted the applicant held responsible for majority of costs - by analogy with Leicester Circuits v Coates where mediation unreasonably refused. Part 20 defendant to be put in position he would have been in if protocol followed. TCC 3rd November 2003.
by His Honour Judge David Wilcox : Crown Copyright

Darke v Strout [2003] ADR.L.R. 01/28
Having confirmed that a maintenance agreement was a legally enforceable contract, the court advised mediation to determine future mainetnance rates and damages for prior breach - as a preferable option to further litigation. CA. 28th January 2003.
by Thorpe LJ; Chadwick LJ; Mr Justice Morland. Crown Copyright

Dart Harbour & Navigation Authority, R (on the application of) v S.S. for Transport [2003] ADR.L.R. 06/26
No one involved understood the Harbour Regulations until the H.Ct explained them. Even the S.S. got them wrong. Little wonder then that mediation was refused. Judgement solved nothing but showed way forward. 26th June 2003
by His Honour Judge Lightman. Crown Copyright

David Leslie Moy v Pettman Smith (a Firm) & Jaqueline Perry [2003] ADR.L.R. 03/25
Refusal to mediate indicative of losing defendant's intransigence - implications on costs considered. CA. 25th March 2003.
by Brooke LJ; Latham LJ; Mr Justice Hart. Crown Copyright

Donald McCreery v Massey Plastic Fabrications Ltd [2003] ADR.L.R. 01/23
Costs : CFA : Privilege : Once the substantive issues are settled there is no longer a justification for asserting privilege in respect of risk assessment documents and allied documents upon which a costs claim are based. Manchester : 23rd January 2003
by Harrison District Judge : Crown Copyright

Drake Insurance Plc v Provident Insurance Plc [2003] ADR.L.R. 12/17
Insurance : ADR settlement and contribution : Impact of arbitration and mediation on right of contribution in insurance dispute. A party that pays under an arbitration award, which the potential contributer is not a party to, is not a volunteer. Contributer declined to mediate. CA. 17th December 2003.
by Clarke LJ; Pill LJ; Rix LJ. Crown Copyright

Dudley, R (on the application of) v East Sussex County Council [2003] ADR.L.R. 04/16
Affirmation of Cowl principles for public disputes and ADR : Commends low cost and no cost mediation. High Court. Admin. 16th April 2003.
by His Honour Judge Maurice Kay. Crown Copyright

Foster v Somerset County Council [2003] ADR.L.R. 07/31
Failure of mediation - liability : Employment mediation and re-mediation failed primarily because the claimant was unwilling to accept any responsibility for poor relations between her and her boss. In the event the EAT found unfair dismissal but found 90% contributory responsibility. EAT. 31st July 2003.
by His Honour Judge Elias. Crown Copyright

G (a child) [2003] ADR.L.R. 07/28
Confidentiality : Where an unrepresented party wishes to consult with a McKenzie Man for the purposes of mediation/negotiation, the permission of the court must be sought, since otherwise there will be a breach of Rule 4.23(1) of the Family Proceedings Rules 1991 of publishing protected information where papers concerning the other party are disclosed to the advisor. CA. 28th July 2003.
by The President Thorpe LJ : Rix LJ. Crown Copyright

Galliford Try Construction Ltd v Michael Heal Associates Ltd [2003] ADR.L.R. 12/01
Construction adjudication postponed pending mediation. The mediation failed and the dispute went forward to adjudication. Decision unenforceable - in the circumstances of the case the contractual basis for the decision was absent. TCC. 1st December 2003.
by His Honour Judge Richard Seymour Q. C. : Crown Copyright

Hollins v Russell [2003] ADR.L.R. 05/22
Disclosure : Privilege and Conditional Fee Arangements (CFAs) CA. 22nd May 2003.
by Brooke LJ; Hale LJ; Arden LJ;

Hurst v Leeming [2003] ADR.L.R. 03/14
Failure to mediate : Costs : Leeming, a barrister, refused to mediate a professional negligence claim : Held : entitled to costs. Reputation issue justified a trial : claimant too stubborn for ADR. Ch.Div. 14th March 2003
by Mr Justice Lawrence Collins. Crown Copyright

Joyce Boyd v Ministry of Defence [2003] ADR.L.R. 12/16
Costs ?late offer to mediate : Late offer of mediation too late to impact upon right to recover costs, since case was clearly heading for a full trial.16th December 2003
by Deputy Master James : Crown Copyright

K (a child), Re [2003] ADR.L.R. 09/16
If either party requests "that this matter be referred to mediation using this court's Alternative Dispute Resolution Service, then I direct that it shall be referred to mediation; and, if the other party fails to participate without a good reason, that may be a reason why this court will exact a penalty of costs against the recalcitrant party for failing to co-operate and by wasting this court's time." CA. 16th September 2003
by Ward LJ. Crown Copyright

Keith Murray Dearling v Foregate Developments (Chester) Ltd [2003] ADR.L.R. 06/09
ADR : Settlement agreement : Costs : Settlement figure picked out of the air : It did not reflect potential outcome of trail : Since no clear winner, no order of costs should be made. CA. 9th June 2003.
by Schiemann LJ; Buxton LJ; Dyson LJ. Crown Copyright

Kerry Anne Drinkall (a minor) v Dean Harry Whitwood [2003] ADR.L.R. 11/06
Settlement Agreement : Minor : Not binding until approved by the court. CA. 6th November 2003.
by Simon Brown LJ; Jonathan Parker LJ; Thomas LJ. Crown Copyright

Kopel (Miss C.H.) v Safeway Stores Plc [2003] ADR.L.R. 04/11
Calderbank offers under CPR 36.3 do not apply to employment tribunals : but whilst there is no automatic cost penalty, the tribunal can under r.14 (Coleman v Seceurop (UK) Ltd (EAT/483/98) and Monaghan v Close Thornton Solicitors (EAT/3/01) consider whether rejection was unreasonable and award costs accordingly. EAT. 11th April 2003.
by His Honour Judge Mitting : Crown Copyright

Leicester Circuits Ltd v Coates Bros plc [2003] ADR.L.R. 03/05
Failure to mediate : Costs : Claimant failed to establish causation and breach of contract : respondent pulled out of mediation : Held : costs related to failure denied. CA. 5th March 2003.
by Judge LJ; Longmore LJ;Sir Swinton Thomas. Crown Copyright

Lesser Landau v Barclays Bank [2003] ADR.L.R. 06/26
The Bank sued surveyor for overvaluation of property: 2 reports addressed to the bank and 1 addressed to the mortgagee. The action was compromised in mediation. This action concerned how much, if any, of the settlement was, by agreement, payable to the mortgagee? Ch.Div. 8th July 2003.
by The Honourable Mr Justice Neuberger : Crown Copyright

Malcolm Electropainting Group v West Midlands Passenger Transport Executive [2003] ADR.L.R. 02/04
Wihout Prejudice Correspondence : Pienrcing the Veil : Witness statements as to fact relied upon by an expert witness are not privileged. The statements of fact are a matter that should be disclosed in advance to enable the other party to prepare to challenge the statement. Land Tribunal. 4th February 2003.
by P.H.Clarke FRICS. Crown Copyright

Neave (Mrs Margaret) v Neave (Mr Hugh) [2003] ADR.L.R. 02/06
Part 36 Offer : Costs : Judgment less than offer : Costs follow event of losing the bidding war : CA. 6th February 2003
by Lord Justices Potter; Chadwick; Tuckey : Crown Copyright

Norris v Norris : Haskins v Haskins [2003] ADR.L.R. 07/28
Calderbank Offers & Counter-Offers : Costs : Where both parties have acted reasonably the appropriate order may be that each party bears their own costs in ancilliary relief cases. CA. 28th July 2003
by Lord Justices Thorpe & Mantell. Crown Copyright

Optical Express (Southern) Ltd v Birmingham City Council [2003] ADR.L.R. 08/27
Without prejudice offers : Piercing the privilege veil. Lands Tribunal England & Wales. 27th August 2003
by P H Clarke FRICS. Crown Copyright

Osborn (B) & Co Ltd v Simone Dior [2003] ADR.L.R. 01/22
Reasons for mediation failing : Parties ordered to mediate outstanding issues in an otherwise failed appeal against a possession order on flats. In the event of ADR failing, court to be supplied with an account of the process and why it failed. CA. 22nd January 2003.
by Brown LJ Simon; Sedley LJ; Arden LJ. Crown Copyright

Partridge v Lawrence [2003] ADR.L.R. 07/08
Failure to mediate : Costs : a 15% reduction in costs awarded to take account of the conduct of the parties. The fact that the offer was late in the day and the offeror wanted to involve his solicitors did not change matters. 85% costs went to the defendants who had made an offer which mirrored the court's decision on width of access to a field. CA. 8th July 2003.
by Peter Gibson LJ; Clarke LJ; Dyson LJ. Crown Copyright

Perry Press v Chipperfield & Stern [2003] ADR.L.R. 03/25
Settlement offer - ?4K plus reasonable costs - insufficiently precise to be taken into account for a costs order. CA. 25th March 2003
by Buxton LJ, Dyson LJ. Crown Copyright

Placito v Slater [2003] ADR.L.R. 12/19
Time bar : Contractual : Voluntary waiver of right to trial. CA. 19th December 2003
by Potter LJ; Laws LJ ; Arden LJ. Crown Copyright

Prudential Insurance Co America v Prudential Assurance Co Ltd [2003] ADR.L.R. 07/31
Competing businesses entered negotiations over the use of the word Prudential in China. The applicant sought to establish that the correspondence was privileged. Held : Not part of a settlement of a foreign claim and hence not privileged. None of the correspondence was labelled "without prejudice." CA. 31st July 2003.
by Schiemann LJ; Chadwick LJ; Jonathan Parker LJ : Crown Copyright

Raymond Konstantinidis v Philip Giles Townsend [2003] ADR.L.R. 03/20
Property dispute : Water rights : Mediation : An order of the court in respect of quasi-contract set aside because it would establish on-going rights attached to land unrelated to changing circumstances. Parties agreed a 70:30 settlement, accepted by the court and agreed that any future dispute be referred to mediation. CA. 20th March 2003.
by L.J. Sedley VC; Kay LJ. Crown Copyright

Rodriguez-Bannister, R (ex parte) v Somerset Partnership NHS & Social Care Trust [2003] ADR.L.R. 08/22
Public Law : "Mention has been made of the desirability of ADR in this kind of case. From what I have seen about the history of this case, and from what I have observed during the course of this hearing, in my judgment ADR could not have resolved the fundamental difficulties between the parties." High Court - Admin. 22nd August 2003.
by Mr Justice Hooper.

Royal Bank of Canada v Secretary of State for Defence [2003] ADR.L.R. 05/14
Failure to mediate : Costs : Lawful termination of a lease turned on a question of law and interpretation of the terms of the lease : MOD refused costs due to a failure to mediate. Ch.Div. 14th May 2003
by Mr Justice Lewison : Crown Copyright

Savings & Investment Bank Ltd. v Fincken [2003] ADR.L.R. 11/14
Without prejudice : Scope of the Unambiguous Impropriety exception considered : Held it is not a flexible concept. An abuse of the privilege must be demonstrated to amount to a cloak for serious wrongdoing. CA. 14th November 2003
by Rix LJ; Carnath LJ. Crown Copyright

Shirayama Shokusan Co Ltd v Danovo Ltd [2003] ADR.L.R. 12/05
Court ordered mediation CPR 1(4) : Dispute over lease and trespass for advertising ? allegations of dishonesty : Respondent applied for court ordered mediation ? application granted. Ch.Div. 5th December 2003
by Mr Justice Blackburne : Crown Copyright

Sinclair Roche & Temperley (a firm) v Somatra Ltd [2003] APP.L.R. 10/23
Privilege : Application for disclosure of documents refused. CA. 23rd October 2003
by Schiemann LJ, Tuckey LJ, Longmore LJ :

Vedatech Corp v Crystal Decisions UK Ltd & Crystal Decisions (Japan) KK [2003] ADR.L.R. 07/03
Fraudulent Settlement : Mediation settlement allegedly induced by fraud. CA. 3rd July 2003
by Lord Justice Carnwath : Crown Copyright

Victor Alfred William Parks v Ray Joseph Clout [2003] ADR.L.R. 06/10
Speculative litigation challenging probate. Appeal against probate failed. Court regretted that mediation had been refused by beneficiary but in the event the beneficiary became the outright winner - so for him it was a good tactical choice. CA. 10th July 2003
by Thorpe LJ; Mr Justice Jacob. Crown Copyright

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