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1 ADR Law Reports ADR.L.R. Provides a selected range of mediation and negotiation related case reports, in pdf, presented in the NADR house style.

2 Mediation Case Data Base by Topic NADR indexed data base by subject matter, with citation : judgement date : presiding judge : short description of content. Last updated 30th April 2008.

3 Mediation Case Data Base by Date NADR data base : mediation cases arranged in reverse date order, commencing with the most recent case. Last updated 30th April 2008.

4 Mediation Case Summaries NADR Details principal UK mediation cases, providing either a short statement of content, or where time permits a considered summary of the case. This is an on-going project. Last updated 28th May 2007.

5 Centre for Effective Dispute Resolution CEDR is the primary UK Mediation service provider and carries a wide range of pdf mediation case reports, supplied by Smith-Bernal / Lawtel. There is no log-in requirement for CEDR -access is free and unrestricted.

6 The Mediation Case Law Database Hamline University School of Law : Database of reported US mediation cases.

AB v British Coal Corporation [2004] EWHC 1372 The fairness of a private administrative process in lieu of mediation/adjudication set up to determine compensation to ex-minors examined by the court. Found to produce results comparative to a court. The Honourable Sir Michael Turner.18th June 2004.

AB v British Coal Corporation [2008] EWHC 69 (Comm) Time bar for submitting dispute to mediation upheld - even where there was no other mechanism for resolving the dispute. Mr Justice Mitting. 15th January 2008

Abballe (T/A G.F.A) v. Alstom Uk Ltd [2000] EWHC TCC 122 Good faith agreements and agreements to agree.TCC. HHJ Humphrey Lloyd. 24th March 2000,

Agodzo v Amegashitsie [1999] EWCA Civ 1453 Dispute between members of an association. Court stayed action and ordered both parties to provide lists of 6 people who might act as mediator in the dispute. Claimant sought to set order aside asserting a denial of justice. Held : merely a reasonable way of finding out if anyone acceptable to both parties. Still required an order by court to mediate, not an order to mediate. Setaside denied. Ward LJ; Chadwick LJ. 20th May 1999.

Agricultural Profiles Ltd v Performance & Deck Roofing Ltd [2005] EWHC 65 Binding compromise and agreement to agree : Existence of a continuing dispute : jurisdiction of court. HHJ Peter Coulson. 17th January 2005.

Aird v Prime Meridian Ltd [2006] EWCA Civ 1866 Successful appeal : the joint statement was a court document under Rule 35(12) CPR issued in the normal way, whatever the intention of the issuing judge. Parties had agreed to issue a joint statement before cross examination. They had undertaken the risk that they might resile from that view later and could not subsequently complain. Document admissible and not subject to mediation privilege. May LJ; Smith LJ; Sir Martin Nourse.21st December 2006.

Aird v Prime Meridian Ltd [2006] EWHC 2338 (TCC) Privilege : Joint statement by experts of agreed and disputed matters. Reduced to a court order for a statement and a mediation. Was the statement privileged? Held : Ordinarily NO - CPR statement not privileged. But here, done very quickly for mediation only. Privileged. Non-admissible. Claimant could broaden out the scope of claims. HHJ. Peter Coulson. 19th September 2006.

Al-Khatib v Masri [2002] EWCA 1045 Family proceedings stayed for mediation. Thorpe LJ. 26th June 2002.

Al-Khatib v Masri [2004] EWCA 1353 Family mediation - case demonstrates the importance of specialist mediators - where commercial mediators failed, experienced family mediators guided parties to a settlement. Thorpe LJ; Mr Justice Wall. 5th October 2004.

Alan Clive Gold v Mincoff Science & Gold (A Firm) [2000] HC199G 1658 Impact of ADR on Limitation of Action : s14A Limitation Act action ? impact of ADR on right to limitation ? solicitor negligently failed to advise on impact of partnership agreement on joint liability for previously incurred debts of another partner. HHJ Neuberger. 21st December 2000.

Ali v Abdur [2006] EWHC 3420 (Ch) Court advised mediation : parties ordered to provide reports within 14 days stating what arrangements had been made for an urgent mediation of the dispute and, if no arrangements had been made, an explanation why. Stated that neither party should set prerequisits or conditions for the mediation. Chancery Div. Robin Knowles QC. 21st December 2006.

Alison Dugmore v Swansea NHS Trust [2004] Lawtel AC0106818 Interest : Claimant exceeded Part 36 Payment in : Court awarded enhanced interest at 10% above bankrate to send out a message that Payment In Offers should be taken seriously. HHJ Masterman. 6th June 2004

Alizadeh v Nikbin [1993] LAWTEL AC1605019 Privilege : A tape recording was made of settlement negotiations : Court refused to admit the recording as evidence : Rush v GLC applied. There was no unambiguous admission of impropriety. Forster v Friedland applied. CA. Balcombe LJ; Simon Brown LJ : Mr Justice Peter Gibson : 1st December 1998

Allen v Colman Coyle Llp [2007] EWHC 90075 (Costs) (29 June 2007) Failure to mediate : costs. Impact of potential costs claim on feasability of mediation. A failure to engage in mediation or to attempt a settlement can amount to a special circumstance within the meaning of s70(10) Solicitors Act 1974. Master Simons, Costs Judge. 29th June 2007.

Altstom v Jarvis [2004] EWHC 1232 May v Butcher and Walford v Miles revisited - enforceability of and nature of an agreement to agree. H.H.Deputy Judge Colin Reese QC 11th May 2004.

Amber v Stacey [2000] EWCA 286 Defendant penalised for making a written offer as opposed to a CPR 36.3 payment in : A subsequent payment in was beaten in court (but not the writen offer). Court stated 36.3 offer is more secure. Defendant ordered to pay half the costs - claimant had been precipitate and unreasonable. CA. Simon Brown LJ, Sir Anthony Evans. 15th November 2000.

Anglo Group plc v. Winter Brown & Co Ltd EWHC TCC 127 ADR Mechanisms : HHJ Toulmin outlines the various ADR mechanisms not available to assist the courts and the parties to settle outside the court roome, seeing no conflict of interest between these processes and the objectives of the court. 8th March 2000.

Anufrijeva v L.B. Southwark; R v SS for H.D. ex parte N & M [2003] EWCA Civ 1406 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. Lord Chief Justice, Master of the Rolls, Auld LJ. 16th October 2003

APC Ltd v. Amey Construction Ltd & Ors [2005] ScotCS CSOH_147 Defendant requested claimant be ordered to amend pleadings to facilitate mediation. Request declined. Would not assist mediation and whether or not the underlying alleged facts were established was an issue that would be settled by proof. Lord MACKAY. Outer House Court of Session. 11th November 2005.

Arrow Trading & Veladail Hotels V Edwardian Group Ltd [2004] EWHC 1319 (Ch) Court ordered discovery in support of mediation : Court can order ordinary disclosure of non-privileged documents to facilitate Part 36 CPR Offer or Mediation. Mr Justice Blackburne. 25th May 2004

Asghar v Legal Services Commission [2004] EWHC 1803 Graduated Dispute Resolution Procedure from internal review, via mediation to arbitration in contract of employment. Court stayed action pending exhaustion of ADR procedures. Mr Justice Lightman : 22nd July 2004

Asiansky Television Plc v Bayer-Rosin [2001] EWCA Civ 1792 Delay : failure to Mediate : Claimant & defendant toyed with mediation ? no one at fault for failing to pursue ? payment in too low to bridge gap based on different premises. Trial needed. Clarke LJ, Mance LJ, Dyson LJ. 19th November 2001.

Asiansky Television Plc v Bayer-Rosin [2003] EWCA Civ 1405 Delay : failure to Mediate : Claimant & defendant toyed with mediation ? no one at fault for failing to pursue ? payment in too low to bridge gap based on different premises. Trial needed. Simon Brown LJ, Laws LJ, Lady Justice Arden. 11th November 2003.

Askey v Wood [2005] EWCA Civ 574 Failure to mediate : Costs : Per Chadwick LJ "An ADR which sought to agree whether liability should be 50/50, 75/25 or 74/26, as suggested in a Part 36 letter -- is likely to be a sterile exercise if the parties do not know, at least in broad terms, what quantum figure is to be apportioned in accordance with what they agree." Therefore no cost implications for a failure to mediate as recommended when application to appeal granted. Appeal failed. 21st April 2005.

Assicurazioni Generali SpA v CGU International Insurance Plc & Ors [2003] EWHC 1073 (Comm) 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

Assicurazioni Generali SPA v CGU International Insurance Plc [2004] EWCA Civ 429 Insurance : Liability of underwriter under settlement agreement - "follow the settlements clause" : Held : Liability not automatic - underwriter entitled to challenge the scope of the "follow on" clause : But assured does not have to prove he would have been legally liable for the full amount agreed in the settlement. Peter Gibson LJ, Tuckey LJ, Nourse LJ. CA. 6th April 2004

Automotive Patterns (Precision Equipment) Ltd v. A.W. Plume Ltd [1996] EWCA Civ 825 This case would have been an appropriate case for court ordered mediation if such a facility existed in the UK. The court expressed concern that small claims may be priced out of court, depriving a deserving party of access to justice.Staughton LJ; Hobhouse LJ; Hutchison LJ. 30th October 1996.

B C (A Minor) [1999] EWCA Civ 1197 Emotional discharge : Family dispute : Mediation requested by the father and recommended by the court, to enable the father to discharge emotions on an independent third party and to open the way to a resolution beneficial to the son caught in the middle of the parent's dispute. Henry LJ; Ward LJ.19th April 1999.

B v O [2004] EWHC 2064 (Fam) Bias : Misconduct : Privilege : Mediator acted in a clearly uneven handed manner. Baron D.B.E.The Honoourable Mrs Justice. 26th August 2004.

B v Richard Pendelbury & Associated Newspapers Ltd [2002] EWHC 1404 (QB) Costs thrown away : Application for wasted costs : Claimant had legal aid withdrawn and his solicitors had obstructed mediation. Court refused order pending investigation by Law Society because of difficulty of assessing potential outcome in the absence of a trial of the issues. HHJ Turner. 28th June 2002

Baddeley v Barker [2003] EWCA Civ 742 Nuisance Action between neighbours : Court strongly recommeded mediation to limit costs and aggravation. Ward LJ; Buxton LJ; Mance LJ. 7th May 2003.

Bailey (N.G.) & Co Ltd. v Amec Design & Management Ltd. [2003] EWHC 9012 (Costs) Privilege : Disclosure : decision of District Judge Harrison in a Donald McCreery v Massey Plastic Fabrications Ltd 23 January 2003. disapproved. Master Rogers, Costs Judge. 6th October 2003.

Bajwa v British Airways Plc [1999] EWCA Civ 1519 Calderbank offer : Costs : The value of an offer for the purpose of costs under CPR 44 is the balance between the sum offered less the value of deducted benefits.The CA will only interfere with a judge's discretion to order costs if he is plainly wrong or has erred in principle. Stuart-Smith LJ; Laws LJ; Mr Justice Jonathan Parker. CA. 28th May 1999.

Balmoral Group Ltd. v Borealis (UK) Ltd [2006] EWHC 2531 (Comm) Mediation : Privilege : Application for costs on indemnity for failure to take reasonable steps to settle. Mr Justice Christopher Clarke : 17th October 2006.

Barclays Plc v Villers [2000] EWHC 197 (Comm) Interpretation of settlement : Settlement agreement contained a Med/Arb Clause. The scope of the agreement referred to court for interpretation : Whilst this concerned an application for a stay to arbitration the real issue between the parties was whether or not one party had been bound to make certain payments and thus was entitled to recover on the settlement indemnity. The answer to both was YES. Langley, The Honourable Mr Justice. 25th January 2000.

Bates v Microstar Ltd [2000] 2000/0069/A3 04-07-2000 ADR : Successful appeal against a summary judgement : Trial ordered but stayed pending ADR ? aggressive correspondence by solicitor criticised by the court. Also reported by CEDR. VC Sir Richard Scott, Aldous LJ Thorpe LJ. 4th July 2000.

Bath & N.E.Somerset DC v Nicholson (2002) 10 EG 156 (CS) Without prejudice letter - negotiations on a lease - acknowledged title. HHJ Lewison QC. 22nd February 2002.

Belt (Julie) v Basildon & Thurrocks NHS Trust [2004] EWHC 783 Lawtel Offers to settle by an insurance carrier, even if not stated to be without prejudice, do not amount to an admission of liability and are not admissible as evidence at trial. Mrs Justice Cox: 27th February 2004

Bernhard Schulte GmbH v Nile Holdings Ltd [2004] EWHC 977 (Comm) Walford v Miles restated : there is no duty under English Law to negotiate in good faith to conclude a contract. HHJ Cooke. 11th May 2004.

Berry Trade Ltd v. Moussavi [2003] EWCA Civ 715 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. Peter Gibson LJ; Tuckey LJ; Mr Justice Nelson. 22nd May 2003.

Beta Investment SA v Transmedia Europe [2003] Ch.D. HC-02-C01840 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. Mr Justin Fenwick QC Deputy Judge H.Ct. 15th December 2003.

Bottin Investments Ltd v Venson Group Plc [2004] EWHC 135 Share contract contained a mediation clause, allowing 90 day procedure, failure giving rise to a right to litigate. Held, no right to litigate until mediation attempted. HHJ Peter Smith. 3rd February 2004

Boynton v Willers [2003] EWCA Civ 904 (03 July 2003) Indemnity Costs : A failure to take up judges advice to settle after 3 days of trial led to an award of indemnity costs. Judgment upheld on appeal.Potter LJ; Chadwick LJ; Mr Justice Cresswell.3rd July 2003.

Bradford & Bingley Plc v Mohammed Rashid [2005] EWCA 2005 Without prejudice : Defaulting mortgagor : Mortgagees sold property : Outstanding balance statute barred : Morgagees sought to rely on correspondence allegedly acknowledging the debt. Held : Privileged : Distinguish with other rights exceptions to privilege rule. Court of Appeal. Buxton LJ, Latham LJ, Sir Martin Nourse. 22nd July 2005.

Bradford & Bingley Plc v. Rashid [2006] UKHL 37 Without prejudice : Case provides an indepth analysis of the scope of the without prejudice privilege : the admission of fact exception : what amounts to an admission of fact : examination of what amounts to a negotiation to settle a dispute. Here an unequivocal admission of liability under a mortgage after time was exhausted under the limitation act defeated the time bar. Lord Hoffmann, Lord Hope of Craighead, Lord Walker of Gestingthorpe, Lord Brown of Eaton-under-Heywood, Lord Mance 12th July 2006.

Bradford v Keith James [2008] EWCA Civ 837 1. There are too many calamitous neighbour disputes in the courts. Greater use should be made of the services of local mediators, who have specialist legal and surveying skills and are experienced in alternative dispute resolution. An attempt at mediation should be made right at the beginning of the dispute and certainly well before things turn nasty and become expensive. By the time neighbours get to court it is often too late for court-based ADR and mediation schemes to have much impact. Litigation hardens attitudes. Costs become an additional aggravating issue. Almost by its own momentum the case that cried out for compromise moves onwards and upwards to a conclusion that is disastrous for one of the parties, possibly for both. Mummery LJ; Jacob LJ; Wilson LJ. 18th July 2008.

Brawley v Marczynski [2002] EWCA Civ 756 ADR : Settlement agreement : Costs : If the parties settle out of court who pays the legal costs of court action? Held : where a party substantially wins he is entitled to costs of the litigation. Aldous LJ; Tuckey LJ; Longmore LJ. 21st October 2002.

British Telecommunications Plc v D.C.Martin & J.A.Stokes [2005] EWHC 1334 (QB) Interpretation of the terms of a mediated settlement agreement : Claim failed - settlement enforced. Accounting applied to the month - a subsequent bill not counted. Account based on the number of clients - not the number of telephone lines.McKinnon J. 5th July 2005.

Brown v Bennett [2001] EWCA Civ 1352 Privilege : Wasted costs order Non-disclosure of requested non-privileged documents, where no inquiry is made as to client instructions does not breach legal privilege rule. Chancery Division. Neuberger : 27th July 2001 : And see later costs order of 18th December 2001

Brown v Rice [2007] All ER (D) 252 (Mar) Without prejudice : Were mediations proceedings admissible to determine whether or not a settlement offer had been made and accepted? Held : Yes - an established exception to the privilege rules. In the event, no valid offer had been made. The claim remained alive and was set down for trial accordingly. Stuart Isaacs QC. Chancery. 14th March 2007.

Brunel University v Webster [2007] EWCA Civ 482 Without prejudice : Waiver : Material involved in settlement process introduced by and referred to by both parties before the EAT. Held : Effective bilateral waiver. Longmore LJ; Smith LJ; Sir Paul Kennedy. 22nd May 2007

Brunel University v Vaseghi [2006] UKEAT 0307_06_1610 Negotiation Privilege : Waiver by conduct in Appeal Proceedings. Failed appeal - no abuse of process. Ansel J. EAT. 16th October 2006

Burchell v Bullard [2005] EWCA Civ 358 Construction litigation : offer of mediation declined : Claim and counterclaim partly successful : Dispproportionate costs : Costs in light of Halsey. Ward LJ; Rix LJ.8th April 2005.

Burne v A [2006] EWCA Civ 24 Court advised mediation : Medical Negligence Claim. Successful appeal. Court recommended parties mediate whereby they are forced to take stock of their respective strenghts and weaknesses - ie reality check (self evaluative) mediation. CA. Ward LJ; Sedley LJ; Wilson LJ. 25th January 2006.

Business Environment Bow Lane Ltd v Deanwater Estates Ltd [2008] EWHC 2003 (TCC) I should add some general words about Part 44.3(5)(d) \"whether a party has exaggerated his claim\". The effect of exaggerating a claim may be to prevent parties having realistic discussions at an early stage to resolve a dispute or prevent a successful mediation. In such cases the result of the exaggeration may be to prevent a settlement of the dispute at an early stage. Similarly, if a case is not merely exaggerated but is put on a wholly unsustainable basis, it may prevent an early settlement. It may also prevent a defendant from being able to assess realistically the value of the Claimant\'s case and make an appropriate Part 36 offer. This will be particularly the case when only the Claimant is able in the first instance to evaluate its own losses. In appropriate cases the Defendant should not be left at such a disadvantage. The situation may, of course, be different if the Defendant is in a position at an early stage fully to evaluate the Claimant\'s case. HHJ Toulmin. 31st July 2008

Butcher (Jill Louise) v Wolfe [(John Robert) 1998] EWCA Civ 1648 Calderbank Offer : Costs : Offer ?200K or independent valuation of tenanted property : Refused - sought a valuation as vacant property : Trial continued but then settled on basis of a tenanted valuation. Held : Calderbank not exceeded : Costs follow event. Lord Justices Simon Brown; Mummery; Mantell.30th October 1998.

Byrne v. Byrne [2005] IEHC 55 Med/Arb : Interpretation and enforceability. Case stated from arbitrator. Macken J. 3rd March 2005.

C v RHL [2005] EWHC 873 International dispute : alleged sham sale of shares - ICC arbitration and satelite litigation in Moscow pending - application for an anti-suit injunction - ADR order issued by Colman J restraining further litigation prejudicial to either party pending the outcome of mediation. HHJ Colman. 28th April 2005.

Cable & Wireless v CR Valentine [2005] EWHC 409 Compromise : A letter agreeing to accept responsbility was not negated by an email limiting acceptance to losses attributable to the acceptor. That sum could be subsequently determined by mediation or negotiation or failing agreement by arbitration/litigation. Mr Justice Cooke. 16th March 2005.
See now appeal : Willis v Cable and Wireless Plc [2005] EWCA Civ 806.

Cable & Wireless v IBM [2002] EWHC 2059 ADR agreement : Stay of action :Where the parties make an unequivocal agreement to mediate the court will issue either a stay of action or adjournment pending outcome of mediation. HHJ Colman. 11th October 2002.

Cadle Company v Hearley [2002] 1 Lloyds Rep 141 Without prejudice offers : Without prejudice defined : Attempt to broaden exceptions to include admissions of fact, as under Scottish Law rejected. HHJ Havelock-Allan Q.C. 26th October 2001.

Campbell v. MGN Ltd [2005] UKHL 61 100% costs agreements in CFA - legality of. Lord Hoffman contrasts the potential for negotiated settlement under the current regime between negligence claims and libel actions - in the light of legal insurance. Lords Nicholls of Birkenhead, Hoffmann, Hope of Craighead, Carswell, Baroness Hale of Richmond. HL. 20th October 2005.

Cape & Dalgleish v Fitzgerald [2002] UKHL 16 Settlement : 3rd party rights : Discusses whether a settlement was full and final and thus precluded liability to contribute under the Civil Liability (Contribution) Act 1978 to third parties. Bingham LJ,Lord Mackay. Lord Steyn, Lord Hope, Lord Rodger.25th April 2002.

Carillion Construction Ltd v Felix UK Ltd [2000] HT/00/223 & 232 Coercion - duress - undue influence : Compromise agreement induced by threat of non supply of material in relation to work in progress. Compromise set aside. HHJ Dyson. 6th November 2000.

Carlo Mantegazza v Neil Holland Architects Ltd [2006] EWHC 2133 (TCC) Lawtel AC0111786 Abuse of process : Compromise settlement agreement : Two year later action brought regarding newly discoved defects in mortar. Held : A new dispute - not embraced by settlement. No abuse. HHJ Mackie. 11th May 2006.

Cave v Borax Europe Ltd & Ors [2001] EWCA Civ 1729 Disproportionate costs : Judge advised mediation over a minor matter of misuse of a tape ? and warned that further litigation costs were disproportionate to the matter. Sir Anthony Evans.14th November 2001.

Cerascope Ltd v Todagres S.A. [2008] EWHC 1502 (Ch) Mediation : Impact upon running of time for statutory limitation. HHJ Behrens. 25th June 2008.

Chalmers v Johns [1998] EWCA Civ 1452 Mediation : Domestic violence. Despite a family history which included allegations of violence, the court urged mediation between a husband and wife, in the light of the strong attachment exhibited and in the interests of the children. Otton LJ; Thorpe LJ. 23rd September 1998.

Charles Church Developments Ltd v Stent Foundations Ltd [2007] EWHC 855 (TCC) Mediation to be pursued late and out of sync with the pre-action protocol. Judgement here would clear the way and simplify matters fot the mediation. Daejan Investments v Park West Club Ltd [2004] BLR 223, approach in which HHJ Wilcox came to the conclusion that it was appropriate to make it a condition of permission to amend in a case where the pre-action protocol had not been complied with, that the amending party should pay the other parties\' costs up to that stage applied. Mr Justice Ramsey. 23rd March 2007

Charles v NTL Group Ltd. [2002] EWCA Civ 2004 Part 36 Offers : Part 36 offer to settle for ?144K : part 36 offer of ?50K : subsequently increased by phone to ?75 and then to ?79K. Court awarded ?49K. Did the offers have to be in a formal manner or in writing in order to be taken into account. Held : No : Costs against the claimant ordered. Lord Justices Kay and Keene. 13th December 2002

Chaudry v Yap : Re Midland Linen Services Ltd (2004) Lawtel AC9100146 Costs : Payment In & refusal to mediate. Attitude of party proposing mediation was inconsistent. Claimant accepted an uplifted payment in. Defendant sought a reduction in costs for alleged failure to mediate. Held : there had been no serious engagement in mediation by the defendant. The claimant was the clear winner and thus entitled to recover litigation costs.Mr Leslie Kosmin QC Deputy Judge High Court.28th October 2004.

Chauhan v Sandhu [1999] EWCA Civ 1610 Mediation : CAB : Pro-bono services : Inter-family business dispute. Appeal as to whether a collateral promise legally enforceable. Otton LJ; Rober Walker LJ. 17th June 1999.

Cheltenham & Gloucester v Ashford [2001] EWCA 396 The court will not order the fixing of a date for trial where a mediation is pending since this would simply place more pressure on a party to settle. Pill LJ. 22nd March 2001.

Chirstos v S.S. for Environment [2002] EWLands ACQ_69_2001 Without prejudice offer : Privilege and waiver : Costs. Lands Tribunal. N J Rose FRICS. 24th June 2002.

CMC Group Plc v Zhang [2006] EWCA Civ 408 Settlement agreement : Penalty Clause - term to repay settlement sum and pay damages for any continued allegations against the claimant a penalty clause. CA. Mummery LJ, Dyson LJ, Sir Charles Mantell. 14th March 2006.

Codent Ltd v Lyson Ltd (2005) Lawtel AC9400558 The claimant failed to beat a payment offer - not followed up with a payment in and made less than 21 days before trial. At 1st instance the court made no allowance for the payment in : the CA held costs should be split 70:30. CA : May LJ, Arden LJ, Sir Peter Gibson. 8th December 2005.

Commercial Union Assurance Co plc v Helliesen & Eichner : Reed Elsevier Inc [1998] Lawtel AC8600584 Anti-suit order : Injunctive relief against continuing action in the US in relation to an insurance action in the High Court which was compromised by a mediated settlement. Cresswell J. 28th October 1998.

Commissioner of Police of The Metropolis v. Nagy [2004] UKEAT 0399_04_2209 EAT sex discrimination action : Tribunal advised preferably ACAS conciliation or mediation. Sums involved small, event occurred a long time ago and had serious implications for the Legal Aid Board. HHJ McMullen QC, MR M Clancy, MR F Motture. 22nd September 2004.

Contac(800) Ltd & Phonenames Ltd v Iris Online Ltd [2004] DRS 1404 Confidentiality : Nominet arbitration : Correspondence related to a failed informal mediation submitted to the arbiter must be ignored and are non-admissible. Bob Elliott. 19th February 2004

Contractreal Ltd v Davies [2001] EWCA Civ 928 Trail Judge applied CPR cost regime to a case where costs were incurred pre-CPR. Held : in the circumstances full costs recoverable despite refusal to mediate. Post CPR such disproportionate costs would not be recoverable. Arden LJ, Mr Justice Wright.17th May 2001.

Corsenso (UK) Ltd v Burden Group Plc [2003] EWHC 1805 (QB) Costs : ADR includes both negotiation and mediation : B engaged in mediation but C made strenuous efforts to settle : B who won a minor counterclaim held liable for costs. C had demonstrated a willingness to negotiate and thus entitled to costs. Judge Reid QC 1st July 2003

Couwenberg v Valkova [2004] EWCA Civ 676 Challenge to a will and subsequent appeal involving allegations of fraud by an executor. Court of Appeal clarified that the Halsey Case is not authority for the unsuitability of mediation where fraud is alleged and recommended mediation even at this late stage, with a warning on costs for a failure to do so. Ward LJ; Waller LJ; Hale LJ. 27th May 2004.

Cowl (Frank) v. Plymouth City Council [2001] EWHC Admin 734 JR - exhausing other avenues. Application for Judicial Review failed. Council had acted reasonably and a complaints procedure not explored. Mr Justice Scott Baker. 14th September, 2001

Cowl (Frank) v Plymouth C.C [2001] EWCA Civ 1935 Public law : Mediation : Local Authority closed old peoples? home : Council failed to pursue settlement process advised by court at first instance : Criticised by Woolf LCJ, Mummery LJ, Buxton LJ. 14th December 2001.

Crowder v Kitson [1997] EWCA Civ 790 New evidence : Failed application to introduce a new expert report at trial post mediation. New report prejudiced the other side. Failed appeal to Phillips LJ, Mummery LJ, CA from decision of HHJ Gibbs. 16 January 1997

Crowther v Brownsword [1998] EWCA Civ 1040 Court advised mediation : Court recommended the services of an organisation such as CEDR. Evans LJ; Mrs Justice Hale. 19th June 1998.

Crystal Decisions (UK) Ltd v Vedatech Corporation [2007] EWHC 1062 (Ch) Crystal negotiated a mediated settlement to a dispute. The defendant sought to set the settlement on the grounds of fraud - having learnt about bank statements which it claims if it had known about them it would not have settled. An anti-suit injunction was granted previously to prevent action being pursued in California. Here the court held no fraud - at best innocent misrepresentation. No grounds to set aside settlement which was enforceable. Anti-suit injunction remained in place. Mr Justice Patten. Chancery Division. 9th May 2007

Cumbria Waste Management Ltd v Baines Wilson (A Firm) [2008] EWHC 786 (QB) Whether the defendant is entitled to disclosure of documents arising out of or in connection with two mediations between the claimants and the DEFRA and which are not subject to legal professional privilege. DEFRA are not a party to these proceedings but have been invited to make representations pursuant to CPR 31.19(6)(b). They resist the making of an order for disclosure. The claimants do not resist the application. They take a neutral stance. HHJ Frances Kirkham. 16th April 2008

Cutts v Head [1984] 1 All ER 597 Without prejudice offers : Costs : A court can look at the contents of a ?without prejudice except as to costs? offer in relation to an award on costs.The traditional and accepted impact of a Calderbank without prejudice offer (Calderbank v Calderbank (1979) FAM 93) on costs reviewed and confirmed. Oliver.LJ.Fox LJ.7th December 1983

Daniels v The Commissioner of Police for the Metropolis [2005] EWCA Civ 1312 Failure to mediate : There will be no cost penalty where the refusal to mediate is reasonable. The defendants, who successfully defended a claim for a work based injury, refused to negotiate to stem the flow of similar claims. The court held that this was a legitimate reason to refuse to compromise a highly defendable claim. Ward LJ. Dyson LJ. CA. 20th October 2005.

Darke v Strout [2003] EWCA Civ 176 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. Thorpe LJ; Chadwick LJ; Mr Justice Morland. 28th January 2003.

Dart Harbour Authority v S.S.Transport [2003] EWHC 1494 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. HHJ Lightman. 26th June 2003

David Prentice (t/a Duns Slaters) v. Portland Manufacturing [2004] ScotCS 117 Refusal to mediate. A failure or refusal to mediate can have no implication in respect of legal liability under the law ? a fortiori there were complicated issues that required a trial. Lord President; Lord Penrose; Lord Clarke. First Div. Inner House Court of Session. 21st May 2004.

Davies v Stockwell Builiding Contractors [2005] EWCA Civ 444 Mediation versus appeal on point of law. Should an appellant seek a pragmatic settlement balancing financial versus litigation risk or litigate to establish a point of law? Waller LJ; Mr Justice Wall.15th April 2005.

Day v Day [2002] EWCA Civ 1842 Reasonableness & compromise. Thorpe LJ explains the distinction betewen reasonableness and compromise and the frame of mind needed in order to successfully mediate. 3rd December 2002.

Dearling v Foregate Developments [2003] EWCA Civ 913 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. Schiemann LJ; Buxton LJ; Dyson LJ.9th June 2003.

Decoma UK Ltd v Haden Drysys International Ltd. [2005] EWHC 2429 (TCC) Payment In : Can a claimant be said to be a successful party when he seeks to accept a payment into court after the expiry of the 21 days, which payment has been made in respect of some (but not all) of his claims, many of which have been subsequently dismissed by the court? His Honour Judge Peter Coulson QC. 4th November 2005.


Devon County Council v Clarke [2005] EWCA Civ 266 Failed Mediation : Damages claim for school's failure to identify dyslexia in a pupil and provide appropriate education partially succeeded. Appeal failed except as to costs. Claimant's costs reduced to 70%. Court noted there were no winners in a ?150K litigation. Mummery LJ; Keene LJ; Dyson LJ. 17th March 2005.

Dimento v Dimento [2007] NSWSC 420 Mandatory Mediation : Australia. Compulsory referral to mediation ? where one party opposes ? whether order should be made ? need for ?level playing field? for mediation. Supreme Court, New South Wales. Brereton J. 16th March 2007.

Dixons Group Plc v Murray-Obodynski & Ors [1999] EWCA Civ 1775 Appeal settled matter of construction of a contract, leaving the dispute alive. ADR recommended to settle that matter. Woolf LJ, Clarke LJ, Mance LJ.6th July 1999.

Dixons Stores Group Ltd v Thames Television plc [1992] LAWTEL AC0010428 Privilege : Correspondence post privileged communications not in response to without prejudice letters admissible. QBD. Drake HHJ : 15th July 1992

Donald McCrerry v Massey Plastic Fabrications Ltd [2003] LAWTEL AC0104769 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.
Harrison District Judge Manchester : 23rd January 2003

Donwins Production Ltd v EMI Films Ltd [1984] Times 9th March 1984 Negotiation agreement: Agreement to negotiate : Differentiate between agreement to negotiate a contract and agreement to negotiate better / clearer more detailed terms to an existing contract. Peter Pain J : 9th March 1984. See also Courtney & Fairbairn v Tolaini Bros.(Hotels)Ltd(1975) 1 WLR 397 Contrast May v Butcher [1934] 2 KB 17-21

Dora v Simper [1999] EWCA Civ 982 Privilege : Settlement Offers : Confidentiality : Piercing the veil of privilege where unambiguous impropriety involved. Otton LJ; Aldous LJ. 15th March 1999.

Drake Insurance Plc v Provident Insurance Plc [2003] EWCA Civ 1834 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. Clarke LJ; Pill LJ; Rix LJ. 17th December 2003.

Drinkall (a minor) v Whitwood [2003] EWCA Civ 1547 Settlement Agreement : Minor : Not binding until approved by the court. Simon Brown LJ; Jonathan Parker LJ; Thomas LJ. 6th November 2003.

Dudley, R (on the application of) v East Sussex County Council [2003] EWHC 1093 Affirmation of Cowl principles for public disputes and ADR : Commends low cost and no cost mediation. HHJ Maurice Kay.16th April 2003.

Dunnett v Railtrack Plc [2002] EWCA Civ 302 Appeal failed : Wrong points of law argued at first instance. Brooke LJ; Robert Walker LJ,Sedley LJ. 22nd February 2002

Dunnett v Railtrack Plc [2002] EWHC 9020 (Costs) Costs : CPR : ADR : Appeal for damages for a potentially arguable action for loss of livestock failed : Solicitors negligent : Railtrack refused mediation & failed to recover costs. Brooke, Robert Walker and Sedley LJJ. 22nd February 2002

Dyson v Leeds City Council [1999] CCRTF 1998/1490/B2 Costs: : CPR :ADR advised : PI ?asbestosis claim : Retrial ordered : Deceased trial judge failed to provide reasons : Case finely balanced. ADR recommended with costs warning. Also reported by CEDR. Ward LJ; Woolf LJ; Laws LJ. 22nd November 1999.

E (A Child), Re [2001] EWCA Civ 1230 Local authority / parent mediation : Mediation advised by the court to enable a Local Authority, tasked with caring for a child, to rebuild its relationship with a parent, so that eventually the parent could have access to the child. Role of CAFFCAS outlined. Hale LJ. 12th July 2001.

Eagleson v Liddell [2001] EWCA Civ 155 Mediation costs : Following a failed appeal against a judgement of liability for personal injury, the court ordered the unsuccessful appellant to pay both the costs of the appeal and of an intervening mediation. Aldous LJ; Walker L.J. Robert : Hale LJ. 2nd February 2001.

Egan v Motor Services (Bath) Ltd [2007] EWCA Civ 1002 Failure by both parties to mediate deprecated. Purpose of issuing draft judgments is to allow parties to proof read & broker costs arrangements : The practice of asking the judge to revise a decision is to be discouraged except in the most exception of circimstances. CA on appeal from Bristol County Court (HHJ Rutherford DL) before Ward LJ; Arden LJ; Smith LJ. 18th October 2007

Egbaiyelo v Egbaiyelo [2002] EWCA Civ 454 Mediation v Litigation : Family dispute. The attitude of the parties renders this case unsuitable for mediation. Ward LJ. Keene LJ. 18th March 2002.

EQ Projects v Alavi [2006] EWHC 29 (TCC) Costs : Payment in : Indemnity : Construction dispute. Claimant, whilst successful did not beat payment in : Claim reduced by counterclaim : Indemnity costs awarded to defendant in respect of the trial. Conduct of trial severely criticised. HHJ Peter Coulson QC. TCC. 6th January 2006

Equitas Ltd v Horace Holman & Company Ltd. [2007] EWHC 903 (Comm) Costs : Protracted action by assignee of Lloyd\'s Syndicate arising out of a settlement agreement against a Broker for inaccurate record keeping. Ultimately it was established that a small sum due to Equitas due to faulty records. Bulk of claim had fallen away once certain records disclosed. Court considered that this could and should have been dealt with by mediation where the problem of records could have been solved. Mediation mooted by Equitas but not actively pursued and not taken into account in costs order. Mr Justice Andrew Smith. 27th April 2007.

Excelsior Commercial & Industrial Holdings v Salisbury Hammer Aspden & Johnson [2002] EWCA Civ 979 Settlement offer : Costs : Discusses the special circumstances in which a court may award Indemnity Costs where a Part 36 CPR Offer / Payment in was rejected by the losing party. Also reported by CEDR. Woolf LCJ; Waller LJ; Laws LJ. 12th June 2002.

F v M [2004] EWHC 727 (Fam) Contact Mediation : Mr Justice Munby outlines the latest developments in the settlement of offspring contact issues between separated parents. 1st April 2004.

FAL Oil Trading Co Ltd v Petronas Trading Co [2002] EWHC 1825 (QB) Without prejudice : Admissibility and impact upon validity of repudiation on grounds of breach of condition. QBD (Comm). HHJ Hallgarten QC. 1st August 2002.

Fanning v University College Cork [1999] IEHC 236 Court refused to injunct mediation proceedings at behest of a co-defendant since by simply refusing to attend he could frustrate the entire process inanycase. Carroll J: 7th July 1999.

Fanning v. University College Cork [2003] IEHC 70 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. Master of the High Court, 22nd October, 2003

Farm Assist Ltd v Secretary of State for Environment Food & Rural Affairs [2008] EWHC 3079 (TCC) Economic Duress : Interim application for disclosures. Was the advice given to FAL by its solicitors before and during the mediation, which might throw some light on FALs state of mind, admissible and subject to disclosure? Held : No - subject to Legal Privilege. Case on-going. Mr Justice Ramsey. 12th December 2008

Feakins v Burstow [2005] EWHC 2441 (QB) Settlement Offer : Costs : Post mediation settlement offer - just before trial rejected. It appears the offer was beaten but at time of rejection costs were not known so it was difficult to evaluate. In the circumstances the claimant was not to be deprived of costs. Mr Justice Jack. QBD. 11th November 2005

Federal Bank of the Middle East Ltd v Charles Hadkinson [1999] Ch.D Lawtel Challenge to a freezing order dispmissed. Application for a stay pending ADR. Court ruled that given the bad feeling between the parties and lack of mutual trust there were no prospects of ADR being successful. Stay refused. Costs ordered on indemnity basis. HHJ Arden. 21st May 1999.

Federal Bank of the Middle East Ltd v. Hadkinson [1999] EWHC Ch 201 Costs on indemnity basis ordered above confirmed. HHJ Arden. 20th October, 1999

Finster v Arriva [2007] Lawtel AC0112766 Mediation rejected. Quantum settlement : Costs. Personal injury claim established : Claimant rejected offer of mediation. Initially a payment in of ?10K was rejected, but then accepted post trial of entitlement pending quantum hearing together with standard costs. Intitial claim was for ?1M+ for lost job opportunity. Job offer was verbal and no corroborating evidence provided to court. Claim exagerrated. 3 day trial excessive. Standard costs for 1 days trial only granted. Deputy Master Williams. Cost Office. 7th February 2007.

Firle Investments Ltd v. Datapoint International Ltd [2000] EWHC TCC 105 Costs : Settlement offer : Claimant rejected offers and went on to achieve a victory by a slim margin. Costs awarded at 33% overall and at 15% after the final offer. Colin Reese QC. 8th May 2000.

Foster v Somerset Council [2003] UKEAT 0355_03_3107 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. HHJ Elias. Ms S R Corby.Mr J R Crosby. 31st July 2003.

Framlington Group Ltd v Barnetson [2007] EWCA Civ 502 Without Prejudice : How proximate must unsuccessful negotiations in a dispute leading to litigation be to the start of litigation, to attract the without prejudice rule. The critical feature of proximity for this purpose is one of the subject matter of the dispute rather than how long before the threat, or start, of litigation it was aired in negotiations i.e. whether the parties contemplated or might reasonably have contemplated litigation if they could not agree. Auld LJ; Longmore LJ; Toulson LJ. 24th May 2007

Fusion Interactive Communication Solutions Ltd v Venture Investment Placement Ltd [2005] EWHC 736 (Ch) Litigation versus Mediation. Inter-director dispute - application for winding up dismissed. Court twice advised mediation - appeared to fail : Refused application and again advised mediation. HHJ Peter Smith. 10th May 2005.

G (a child) [2003] EWCA Civ 1055 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. The President Thorpe LJ : Rix LJ. 28th July 2003.

Gammon v Stoke Mandeville Hospital NHS Trust [2004] UKEAT 0563_03_1106 Work place mediator resigned from his role asserting lack of expertise. This caused such distrust that the claimant resigned claiming unfair dismissal. Claim failed. Demonstrates the importance of appointing the right person first time around since resignation may be interpreted as meaning mediator has been "got to" by the other side. HHJ J R Reid QC; Mr G Lewis; Mr R Lyons. 11th June 2004.

George Edward Bytheway v British Steel Plc [1997] EWCA 1973 ADR and Statutory Limitation : Held : despite participation in an ADR Scheme, a party is entitled to rely on Statutory time bar, where the threshold time is passed during the course of ADR proceedings. Thorpe LJ; Judge LJ. 26th June 1997.

George Fisher Holding Ltd v Multi Design Consultants Ltd [1998] EWHC TCC 329 Calderbank settlement offers and payment in under Order 62, rule 9(1)(d) & Order 22, rule 14 compared. Official Referees Business. His Honour Judge Hicks QC : TCC. 6th April 1998.

Gibson v Commission for Social Care Inspection [2004] EWCST 266(EA_Costs) Failure to mediate. Regulation 24 - Care Homes Regulations 2001 - at the discretion of the tribunal appellant can be ordered to pay costs of appeal where conduct of appeal is unreasonable. No duty to mediate. Mr Stewart Hunter (Chairman), Mrs Linda Elliot, Mr Jeff Cohen. 21st June 2005

Gil v Baygreen Properties Ltd.& Ors [2004] EWHC 2029 Application for costs : Mediation discussed and implication of Halsey. CPR 44 applied. Deviation from costs follow event - ?20k deducted. Mr Nicholas Davidson QC Deputy Judge Ch.Div. 19th August 2004.

Glencot Dev. & Design Co Ltd v Ben Barrett & Son (Contractors) Ltd [2001] BLR 207 Med/arb : Bias Prejudice : Clear advice on potential prejudice arising out of disclosure during mediation needed before a mediator can act as an adjudicator in the same dispute.H.H.J. Humphrey Lloyd QC 13th February 2001.

Gnitrow Ltd v Cape Plc [2000] 3 All.E.R. 763 CA Action for contribution to a settlement agreement by a co-contractor. Without prejudice negotiations led to settlement terms by insurance carriers of asbestosis claims. The applicant sought disclosure of the terms to establish the extent of his liability. Disclosure ordered. Pill LJ, Sir Murray Stuart-Smith. 30th June 2000.

Goldman v Hesper [1988] LAWTEL AC1266056 Privilege : Costs : Taxation : Documents relied upon by the other party for cost purposes are not privileged. CA. Donaldson L MR Woolf LJ Taylor LJ : 26th July 1988

Gould v Armstrong [2002] EWCA Civ 1159 Difference between claim and counter-claim resulted in a ?700 payout. Protracted satellite litigation then took place over costs. Final result taxed costs of ?14,000. Court expressed regret that initial pre-trial offers to negotiate were rejected, though doubts expressed about the value of formal mediation for such a small amount. Lord Phillips MR; Keene LJ.23rd July 2002.

Gower Chemicals Group Litigation v Gower Chemicals Ltd [2008] EWHC 735 (QB) Costs : Disclosure & expert report: Series of group mediations settlements save as to costs : Costs litigation - party to elect whether to disclose expert report or rely on other documents. Whether order fair. Mr Justice Davies. 17th April 2008.

H (A Minor) [1998] EWCA Civ 98 Mandated versus recommended mediation : Court expressed the view that compulsory mediation is a contradiction. Roch LJ : Wall LJ. 29th January 1998.

H (Minors) [1998] EWCA Civ 481 Reality check : Family Dispute : The disputing parents need an independent mediator to bring about a setting in which they are able to grasp what their children are trying to tell them. Gibson LJ Peter : Ward LJ. 18th March 1998.

H v H [2004] EWHC 1066 (Fam) Family mediation costs : Court told parents they needed mediation for the benefit of the child and held that this was a cost that could be funded out of the child's trust fund, as something for his benefit.Baron, The Honourable Mrs Justice. 14th May 2004.

Haines v Carter [2002] UKPC 49 Interpretation of a badly drafted mediation agreement which included a provision to mediate any breach of the mediation settlement. Bingham LJ; Slynn LJ; Nicholls LJ. Rodger LJ. Rt. Hon. Tipping.J. 7th October 2002.

Halifax Financial Services v Intuitive Systems [1999] 1 All ER 664 ADR : Court?s Jurisdiction : Pre-CPR 1998 case on jurisdiction of the courts in respect of agreements to negotiate in good faith and the power to award a stay of action. Also reported by CEDR. Mr. Justice McKinnon. 21st December 1998.

Halifax Plc v Olanrewaju [2002] EWCA Civ 518 Stay to mediation : Application for appeal to be heard in full. Likely to be granted because court below provided no reasons for the exercise of its discretion in ordering repossession of a mortgaged property. Hearing stayed to mediation to enable parties to reach an agreement over costs, the central issue in the case and to provide the applicant with an opportunity to try and secure an alternative mortgage provider. Ward LJ. 11th April 2002.

Hall v Pertemps Group Ltd [2005] EWHC 3110 (Ch) LAWTEL AC9900805 Without Prejudice : Privilege : Allegations of threats occurring during a mediation featured in another action. Did this amount to a waiver of the mediation? Held : No - only a waiver of the discrete issue as to whether or not threats were made in the mediation or occurred subsequently - to a third party and not relevant to the action. HHJ Lewison. Chancery Division. 1st November 2005 .


Halsey v Milton Keynes General NHS Trust : Steel v Joy & Halliday [2004] EWCA (Civ) 576 Court advised mediation : costs : CA sets out role of court in advising mediation : and the grounds upon which costs may be ordered by a party who fails to mediate. Ward LJ; Laws LJ; Dyson LJ. 11th May 2004.

Hanna-Barbera Productions Inc -v- Hay [2002] DRS 389_Appeal Without Prejudice : If domain name registrants could avoid the implications of their registration application details simply by sending complainants letters marked 'Without Prejudice' and stating that, with a view to settling the dispute, they are willing to transfer the domain name for a sum of money this would drive a coach and horses through the Policy. 21st August 2002.

Hardcastle (B.D. & C) v Leeds & Holbeck Building Society [2002] Costs : pro-se mediation regarding negligent valuation of property failed followed by a CFA supported action and settlement agreement : CFA entitled to success costs - statute barred personal injury (stress) aspect of claim discounted in reckoning of success costs since it would probably have been dropped pre-trial. Bellamy J. 21st October 2002.

Hayes v Stewart [2002] EWCA Civ 513 Construction Case remitted for determination of quantum. Costs outweighed the value : ADR advised : case not listed pending outcome of ADR. Simon Brown LJ; Lady Hale J. 22nd March 2002.

Heaton v AXA Equity and Law Assurance Society PLC [2002] UKHL 15 Settlement : 3rd party rights : Actions for breach of contract by A against B & C respectively. B settled ? did that preclude an action against C ? Held ? no ? not in the present circumstances. Bingham LJ; Mackay LJ; Steyn LJ; Rodger LJ. 25th April 2002.

Hepworth Building Products Ltd v The Coal Authority [1999] EWCA 1749 A lapsed offer at the time of trial can still be taken into account for a costs order. CA : Peter Gibson LJ, Judge LJ, Waller LJ. 2nd July 1999.

Hertsmere Primary Care Trust v Estate of B & K Rabindra-Anandh [2005] EWHC 320 (Ch) Settlement offer : Costs : The mere fact that an offer did not include an expiry date will not necessarily prevent it being treated as a payment in for costs purposes. Lightman J. 7th March 2005.

Hickman v Lapthorn [2006] EWHC 12 (QB) Refusal to mediate : Costs : 1st defendant prepared to mediate : 2nd defendant refused. Court held optimistic but not unrealistic - not liable for costs of claimant and 1st defendant. The Hon. Mr Justice Jack. QBD. 17th January 2006.

Hobin v Douglas [1998] EWCA Civ 1903 Calderbank offer - post finding on entitlement as attempt to avoid decision on quantum. Offer not taken up. At first instance refusal taken into account regarding costs. CA overturned the decision - a hearing would be needed in any event - if only to confirm settlement. Roch LJ; Swinton Thomas LJ : Schiemann LJ. 3rd December 1998

Holland v PKF [2004] HC02CO3821 Costs : Failed mediation. Costs Judge, Master Wright. 11th October 2004.

Hollins v Russell [2003] EWCA Civ 718 Disclosure : Privilege and CFAs. Brooke LJ; Hale LJ; Arden LJ; 22nd May 2003.

Holloway v Chancery Mead Ltd [2007] EWHC 2495 (TCC) A building contract provided a range of options for dispute resolution ranging from an ADR settlement process through to arbitration. The home owner submitted the dispute to arbitration the builder sought to stay the arbitration pending the outcome of an ADR settlement process. Held : The ADR was an option not a prerequisite and in the circumstances there was an immediate right to pursue arbitration. Mr Justice Ramsey. 30th July 2007

Huck v Robson [2002] EWCA Civ 398 Settlement offer : Costs : RTA - claim for damages. Held : a claimant who has bettered his Part 36 offer has a prima facie entitlement to indemnity costs. The general presumption that a successful claimant only receives costs on the standard basis is displaced by Part 36.21(4). Lord Justices Schiemann, Tuckey, Jonathan Parker.
21st March, 2002

Hughes v Jones (t/a Plas-Y-Bryn Nursing Home) [2002] EWCA Civ 346 Court advised mediation : Application to appeal granted, with an indication of a real prospect of success. With that in mind, and the need of the Nursing Home to preserve funds, the court advised mediation. Ward LJ; Keen LJ. 11th March 2002.

Hurst v Leeming [2002] EWHC 1051 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. HHJ Lightman. 9th May 2002.

Hurst v Leeming [2002] EWHC 9026 (Costs) Failure to mediate : Costs order. Mr Justice Lightman. 9th May 2002

Hurst v Leeming [2003] EWCH 499 (Ch) 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. Mr Justice Lawrence Collins. 14th March 2003.

IDA Ltd v The University of Southampton [2006] EWCA Civ 145 Med/Arb : Patent Dispute. At the end of the judgment the court proposed that Med/Arb would be a suitable method of producing an early determination to such disputes. CA. Ward LJ; Jacob LJ; Wilson LJ. 2nd March 2006

Imam Bozkurt v Thames Magistrates Court [2001] LAWTEL AC8001922 Privilege : Human Rights : Interpreters An interpreter present at an interview is subject to the same privilege rules as a solicitor. Art 6(3)(c) ECHR. Woolf LJ: Bell J Administrative Court. 2nd February 2001

In the matter of a company (2005) Lawtel No. AC9100809 Privilege : Where the parties refer to the conduct of a mediation satellite litigation they are deemed to have waived privilege. Ch.Div. Lewison J. 1st November 2005.

Independent Research Services Ltd v Catterall [1992] UKEAT 279_92_2606 A Without prejudice privilege : Appeal from refusal by chairman of tribunal to admit without prejudice correspondence re unfair dismissal to demonstrate a break down in trust & confidence and lawful dismissal. Chairman failed to explain without prejudice privilege rule ? but even so applicable to Employment tribunals. Knox Mr Justice : EAT. 26th June 1992

Instance v Denny Bros Printing [1999] EWCH Patents 112 : Lawtel AC7200804 Without prejudice offers : Disclosure :Without prejudice material is confidential and may not be disclosed or used in subsequent litigation whether or not related, by the same or other parties. Ch.Div. HHJ Lloyd. 21st December 1999.

J (A Child), Re [2004] EWCA Civ 417 Shariah Court Mediation : Conciliation / mediation role of Shariah Court outlined. Gage, Mr Justice ; Thorpe LJ; Wall LJ. 2nd April 2004.

Jackson v Ministry of Defence [2006] EWCA Civ 46 Without prejudice privilege : Defendant only just beat a payment in and had costs reduced. The MOD sought to introduce evidence from a settlement conference to further reduce the claimant's costs award. Held : Settlement not subject to without prejudice to costs provision - so privileged and non-addmissible. Tuckey LJ; Keene LJ; Wilson LJ. CA. 12th January 2006.

Jameson v Central Electricity Generating Board [1997] Civ 1008 Settlement : 3rd party rights : Claimant died of asbestosis : Sued employer and brokered a settlement. Widow then sued a sub-contract employer. Held : Double recovery ? final settlement. Nourse LJ; Auld LJ; Sir Patrick Russell. 13th February 1997.

Jameson v Central Electricity Generating Board [2000] 1 AC 455 HL Settlement : 3rd party rights : Claimant died of asbestosis : Sued employer and brokered a settlement. Widow then sued a sub-contract employer. Held : Double recovery ? final settlement. Lords Browne-Wilkinson, Lloyd, Hoffmann, Hope & Clyde 16th December 1998.

Jiad v Byford [2002] EWCA Civ 1224 Commendation of mediation because one of the parties appeared pro-se in a case that called for layering skills. Court considered that since mediation does not require legal representation it would be ideal. View expressed that lawyers can impede mediation process. Sedley LJ. 16th July 2002.

John & Anne Martin v Peter Francis & Jean Childs [2002] EWCA Civ 283 Recommendation to mediate.Court of Appeal held that a conveyance did not include right to lay a fresh water pipe over neighbouring land. In consequence the court could not provide a solution and expressed the hope that the parties might solve the problem by mediation. Since the parties had been involved in litigation it is hard to see how this hope might be realised. Pill LJ; Mummery LJ; Lady Justice Hale.19th February 2002.

John Amorifer Usoamaka v Conflict & Change Ltd [1999] CCRTF 98/0709/2 Professional conduct in mediation : Community mediator, in disregard of rules of community mediation service provider engaged in family mediation in an unprofessional manner. Henry LJ; Mr Justice Holman. 28th May 1999.

Jones v Harrison [1999] EWCA Civ 772 Mediation Advised : Acrimonious dispute between car owner and garage. Despite background, given value of claim and high legal costs, C.A. proposed mediation. Evans LJ : Mr Justice Hidden. 12th February 1999.

Joyce Boyd v MOD [2003] HQ02X00875 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. Deputy Master James. 16th December 2003

K (a child), Re [2003] EWCA Civ 1410 ... 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." Ward LJ. 16th September 2003.

Keshwara v Keshwara [2002] EWCA Civ 1416 Stay pending mediation : Property dispute between brothers. Appeal granted, but scheduling stayed pending mediation or at least the parties having been given an opportunity to consider resorting to the process. Ward LJ. 12th September 2002.

Kinetics Technology v Cross Seas Shipping [1998] F1530 Costs : Post payment in : Claimants recovered marginally more than the defendant had paid in under CPR 36 : Claimant lost on 4 out of 5 points : Held : claimant 66% liable for costs. Also reported by CEDR.Mr Justice David Steel.16th February 2001

Kinstreet Ltd v Balmargo Corporation Ltd [1999] Ch 1994 G2999 Court advised mediation : In a case where neither party could really afford the appeal trial costs the CA strongly urged the parties to mediate, despite the high levels of distrust. Also reported by CEDR. Mrs Justice Arden. 23rd July 1999

Konig v Konig [2002] EWCA Civ 467 Family Mediation in UK & Germany. Whilst UK Family Mediation is concerned with the setttling of ancilliary matters, the principal aim in Germany is the Divorce Process. Thorpe LJ. 6th March 2002.

Konstantinidis v Townsend [2003] EWCA Civ 537 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. L.J. Sedley VC; Kay LJ. 20th March 2003.

Kooltrade Ltd v XTS LTD [2001] ChD. Lawtel AC9900018 X asserted in without prejudice correspondence sent to K and to Tesco that K had infringed a copyright and Tesco has sold the product. K sued for false allegations of breach of copyright. X asserted privilege. Court held the correspondence amounted to demands not negotiations and were not privileged. Pumphrey J. 10th December 2001.

Kopel C H v Safeways Stores Plc (2003) IRLR 753 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. Mitting J, K Bilgan, DJ Hodgkins. 11th April 2003.

Kristjansson v R Verney & Co Ltd [1998] EWCA Civ 1029 : Bailii Without prejudice : Failed attempt to pierce the veil : Communications to be used to establish admission of liability : but no evidence of unambiguous impropriety viz blackmail or intimidation. CA. Beldam LJ; Mummery LJ; Sir John Knox. 18th June 1998

Kumar v Osbournes [1997] EWCA Civ 2877 Stay for mediation requested. Application for adjournment of hearing to enable mediation to take place refused, because a point of law was at issue and the other party was not prepared to mediate. Legal Aid Refused. There was no likelyhood of appealing the refusal of legal aid. Morritt LJ. 2nd December 1997.

Laird v Laird & Anor [1998] EWCA Civ 1841 Case remitted to a district judge to determine the wife's application for ancillary relief which has never been properly or fully determined. ADR urged to stem further dissipation of funds.Stuart-Smith LJ; Thorpe LJ; Mummery LJ. 25th November 1998.

Leicester Circuits Ltd v Coates Brothers PLC [2003] EWCA Civ 290 Failure to mediate : Costs : Claimant failed to establish causation and breach of contract : respondent pulled out of mediation : Held : costs related to failure denied. Judge LJ; Longmore LJ;Sir Swinton Thomas.5th March 2003.

Lesser Landau v Barclays Bank [2003] EWHC 1645 (Ch) 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? Neuberger J. 8th July 2003.

Lewis v Barnett (t/a Windmill Racing Stables) [2004] EWCA Civ 807 Court Mediation Scheme Application for disclosure granted. Court commended the mediation scheme and gave strong warnings on costs for a failure to avail themselves of the service. Sedley LJ; Neuberger LJ. 15th June 2004.

Liaquat Ali v Robert Lane [2006] EWCA Civ 1532 Professional advisors should regard themselves as under a duty to ensure that their clients are aware of the potentially catastrophic consequences of litigation of this kind (petty boundary disputes) and of the possibilities of alternative dispute procedures - but provides no indication of the potential consequences of not fulfilling that duty. Waller LJ; Carnwath LJ; Maurice Kay LJ. 21st November 2006.

Lindner Ceilings Floors Partitions Plc v How Engineering Services Ltd [2000] EWHC 46 TCC A sealed offer to be effective as to a costs award does not have to include costs : merely a clear indication as to whether or not costs are included. HHJ Richard Seymour 28th November 2000

Lindsey Ann Kelly v Jean Corston [1997] EWCA Civ 2081 Immunity : Privilege. Is counsel immune from suit for alleged negligence during settlement negotiations? CA. Butler-Sloss LJ, Pill LJ, Judge LJ. 10th July 1997.

Lloyd, R v [2001] EWCA Civ 533 Mediation v Litigation. Legal rights & wider interests. Disabled applicant wanted communal dining. Accommodation operated by Housing Association. Council resisted communal dining because the premises might be designated under the Registered Homes Act, vitiating the lease to the Association. Mediation failed to get to the root of the problem. Schiemann LJ, Sedley LJ, Lady Justice Arden. 11th April 2001.

Lobster Group Ltd v Heidelberg Graphic Equipment Ltd [2008] EWHC 413 (TCC) Costs of failed mediation : recovery at trial : Whether and or in what circumstances costs of a failed mediation might be subsequently be recovered along with other costs by successful party to a trial. Mr Justice Coulson. 6th March 2008

Locksley Brown v MCASSO Music Productions [2005] EWCA Civ 1546 Refusal to mediate : settlement offer : In the circumstances there were no winners. The claimant got less than he sought. The defendant incurred great costs. The appropriate order was no costs : Order for claimant to pay costs quashed. Judge placed too much reliance on the settlement offer. CA : Scott Baker LJ; Neuberger. 10th November 2005.

Lumbermens Mutual Casualty Company v Bovis Lend Lease Ltd [2004] EWHC 2197 (Comm) Insurance : Settlement agreement : In order to establish a right to recover liabilities incurred under a settlement agreement, assured must establish a loss covered by the policy. HHJ Colman. Commercial Court. 5th October 2004

Maggs (t/a BM Builders) v Marsh [2006] EWCA Civ 1058 Retrial : Listing : Auccessful appeal : Retrial ordered but not to be listed until parties had demonstrated that appropriate measures had been taken to resolve the dispute. CA. Smith LJ; Moses LJ; Hallett LJ. 7th July 2006.

Malcolm Electropainting Group v West Midlands Passenger Transport Executive [2003] ACQ 59 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. P.H.Clarke FRICS. 16th December 2002.

Malcolm Electropainting Group v West Midlands Passenger Transport Executive [2003] EWLands ACQ_59_2002 Privileged information - whether subject to legal privilege. continuation from above. P H Clarke FRICS. 4th February 2003.

Malkins Nominees v Societe Finance [2002] EWHC 1221 Ch Failure to mediate : Costs : Winning claimants failed to engage in a mediation. Court would have deducted 25% costs but because offer made late in the day only deducted 15%. Also reported by CEDR. Mr Justice Etherton. 29th May 2002.

Malmesbury v Strutt & Parker (a partnership) [2007] EWHC 999 (QB) Waiver of mediation privilege : costs of unreasonable behaviour of party submitting dispute to mediation of maintaining an unreasonable demand which led to failure of negotiations where sum offered by respondent ulimately not beaten in court. Mr Justice Jack : 11th May 2007

Malmesbury, Carleton v Strutt & Parker (A Partnership) [2008] EWHC 616 (QB) Interest : Whether it should be awarded. Mr Justice Jack. 24th April 2008.

Marchands Associates LLP v Thompson Partnership LLP [2004] EWCA Civ 878 Successful appellants awarded costs up to the date they refused to take part in court advised mediation and because the central issue had been conceded by the respondents prior to the appeal. Peter Gibson LJ; Waller LJ; May LJ. 28th June 2004.

Marie Suzy -Cafane v London Borough of Lambeth [2004] CL107096 Recovery of costs : applicant sought to recover costs of a failed attempt to claim damages for alleged breach of right to buy : the claimant had recovered sums in a mediation for failure to repair and applicant sought to tap into this sum of money. Master Gordon Saker.9th September 2004.

Mark v Mark [2002] EWCA Civ 1837 Appeal against divorce petition on jurisdictional grounds stayed pending mediation. Already ?2M had been spent on litigation - enough, the court noted to sustain the ex-wife for the rest of her life. Thorpe LJ; Potter LJ; Mr Justice Munby.27th November 2002.

Maskell v Maskell [2001] EWCA Civ 858 Refusal of right to appeal order dividing up family funds overturned. Court advised mediation since futher litigation would merely disipate the fund, to the detriment of both parties, whatever the ultimate outcome of the appeal. Thorpe LJ; Mr Justice Bell.8th May 2001.

McCaffery L.M.M. v Datta B & J : St Anne's Nursing Home Ltd [1996] EWCA Civ 1179 Payment in : Costs : A payment in cancels out the impact of a Calderbank offer in respect of an award of costs. Stuart-Smith LJ; Aldous LJ; Ward LJ: 11th December 1996

McCook v Lobo [2002] EWCA 1760 Claimant's claim dismissed at 1st instance and on appeal. A letter suggesting mediation was ignored by the defendant. Held : There was no likelihood of mediation being successful, so no cost implications for refusal to mediate. Pill LJ; Judge LJ; Hale LJ. 19th November 2002.

McDowall v Hirschfield Lipson & Rumney [1992] LAWTEL 1603200 Without prejudice : Facts : Where without prejudice correspondence provides evidence of independent facts the privilege may be broken. Stockdale HHJ : Family. 13th February 1992

McGeough v Thomson Holidays Ltd. [2007] EWCA Civ 1509 Mediation is a valuable facility, which has a significant role to play in the administration of justice. It does not in my view assist the cause of mediation if parties are urged to mediate in a situation in which there is no real possibility that it will help. In this case both parties were advised by competent and experienced solicitors. The respondent had in his favour, following trial, a judgment wholly favourable to him, and one which in the event this court considers to be entirely sound. Of course, there may be room for negotiation in such a situation, the outcome of litigation, including litigation on appeal, never being free from hazard, but such negotiation could be conducted between legal advisers. Pill LJ; Keene LJ; Thomas LJ. 20th December 2007

McMillan Williams v Range [2004] EWCA (Civ) 294 CA held first that an advance on wages is not a credit agreement that has to be in statutory form. Therefore a junior solicitor who received advance wages in excess of earnings had to repay the excess to the law firm on her departure. Appeal allowed. At 1st instance mediation was advised. Both parties contributed equally to the failure so court ordered each party to bear their own costs. Ward LJ; Mantell LJ; Jonathan Parker LJ. 17th March 2004.

McPherson v BNP Paribas [2004] EWCA Civ 569 Claimant withdrew a wrongful dismissal claim because of a medical condition "exacerbated by stress induced by the other parties refusal to mediate." The EAT awarded costs of action against the claimant. He appealed. Held, the withdrawal was unreasonable and costs post withdrawal awarded, but no costs for the initial action which was a potentially viable suit. Thorpe LJ; Mummery LJ; Mr Justice Bennett. 13th May 2004.

Mensah v Islington Council [2000] EWCA Civ 405 Mediation : non legal outcomes : appology. Whilst the court, in rejecting an application to appeal noted that this case was not suitable for mediation, the primary remedy, viz an appology was not one open to the court, whereas that is something frequently used as a key to a settlement. Arden LJ; Gibson LJ. Peter. 1st December 2000.

Merelie v Newcastle Primary Health Care Trust (No.3) [2006] EWHC 1433 (Admin) Mediation : Role of apology : whilst an apology can be a useful aspect of mediation it is not appropriate to demand an apology as a prerequisite to mediation. QBD. Admin div. Mr Justice Underhill. 20th June 2006

Michael Humpheryes v Nedcon Uk Ltd [2004] EWHC 2558 (QB) Lawtel AC0102793 Co-defendants : One prepared to settle - other not - Part 36 offer to settle by claimant rejected but subsequently beaten. Liability apportioned 2/3rd : 1/3rd. 2nd defendant went into liquidation. Ist defendant liable for entire sum. Enhanced interest on costs and costs on an indemnity basis. HHJ Roderick Evans. 10th November 2004.

Michael Maillis v Harold Supplies Plc (1996) Without prejudice communication : Application to peirce the veil - grounds 1) Buckinghamshire County Council v Moran - assertion of rights 2) unambiguous impropriety : Waldridge v Kennison ; Rush & Tompkins v GLC ; Independent Research Services v Catterall ; Fazl-Alizadeh v Nikbin considered. Garland J. 20th March 1996.

Michael v Miller [2004] EWCA Civ 282 Mediation Advised : Valuation dispute regarding mortgagees disposal of property, and particularly the value of a lavender crop. One party ordered to pay costs of hearing, to be discounted from any damages subsequently recovered - but with strong advice to mediate- costs already being disproportionate. Auld LJ; Baker LJ Scott; Parker LJ Jonathon. 22nd March 2004.

Michaelides v Wilkinson [1999] EWCA Civ 1168 Mediation recommended in lieu of appeal. On appeal evidence was rulled admissible which was not accepted at first instance. Application to appeal granted. In light of the admissibility, mediation commended. Peter Gibson LJ; Mr Justice Blofeld. 14th April 1999.

Mid-Devon District Council v First Secretary of State [2004] EWHC 814 (Admin) DEFRA mediation ? application for stay : Stay refused ? mediation applied for late in the day : Court went ahead and heard the matter. Mr Justice Keith. 23rd March 2004.

Milne v David Price Solicitors & Advocates [2005] EWHC 90002 (Costs) Calderbank Offer : Acceptance and impact upon legal fees due under a CFA. Master Seager Berry; Costs Judge. 7th March 2005.

Mitchell v Ron James [2002] EWCA Civ 997 Settlement offer : Costs : A settlement offer did not specify its expiry date. That alone would not prevent it being treated as a payment in for cost purposes. However, cost offers would not be factored in by the court. In the event costs order not disturbed. Gibson LJ Peter, Potter LJ, Stuart-Smith Sir Murray. 12th July 2002.

Molloy v Shell UK Ltd [2001] EWCA Civ 1272 Payment in : Exagerated claim : CA increased costs order against winning claimant from 75% to 100%. CA. LJ Mummery; LJ Laws. 6th July 2001.

Montlake, Yarrinton & Wills v Lambert Smith Hampton Group Ltd [2004] EWHC 1503 (Comm) Failed Mediation Costs Claim prevailed, exceeding a Part 36 offer, which followed a failed mediation : Held : Claimant had done all required in terms of settlement to be entitled to costs and interest. Mr Justice Langley. 8th July 2004.

Moore v Moore [2004] EWCA Civ 1243 The court has no power to impose mediation on the parties but the trial judge might well consider whether pending applications should be given time in the court calendar, and particularly whether they should be given priority in the court calendar unless the parties have first availed themselves of the invitation to mediate. Thorpe LJ; Waller LJ; Lady Justice Arden. 29th July 2004.

Morris v Jones [2002] EWCA Civ 1790 Court advised mediation : Appeal successful in parts : insufficient evidence being available to assess quantum a further hearing was required. In the meantime the court advised mediation, providing considerable guidance as to the factors that both parties should take into account.Evans, Sir anthony, Clarke LJ; Ward LJ.6th December 2002.

Moy v Pettman Smith [2003] EWCA Civ 467 Refusal to mediate indicative of losing defendant's intransigence - implications on costs considered. Brooke LJ; Latham LJ; Mr Justice Hart. 25th March 2003.

MT v DT [2000] Scots CS 283 Admissibility of disclosures during mediation of family dispute denied. Inner House Court of Session. Lord President; Lords Milligan, Nimmo Smith, Bonomy, Allanbridge. 10th November 2000.

Muller v Linsley & Mortimer (1994) CA. Settlement - duress : Terms of a settlement even if made without prejudice can be examined by the court to establish whether the settlement was concluded through unfair means. Leggatt LJ, Hoffmann LJ, Swinton Thomas LJ. 30th November 1994.

Muman v Nagasena [1999] EWCA Civ 764 Application for expedited appeal repelled. A full hearing required. Evans LJ; Mr Justice Hidden. 10th February 1999.


Muman v Nagasena [1999] EWCA 1742 Court mandated mediation : Who had the right to occupation of a Buddhist Temple owned by a charitable trust? Court mandated mediation as a pre-requisite to further hearings. Nourse LJ; Swinton Thomas LJ; Mummery LJ. 1st July 1999.

Munkenbeck & Marshall v Harold [2005] EWHC 356 Claim for claimant's pre-trial costs where the claim was settled just before the trial date. HHJ Richard Havery : 17th March 2005.

Munt v Beasley [2006] EWCA Civ 370 Privilege : Notes of mediation proceedings used as evidence to establish that a landlord had contrary to the express terms of a lease included the use of a loft as part of the tenance. There is no discussion as to why the note was admissible ? presumably accepted by both sides that admissibility related to establishment of a legal interest. CA. Mummery LJ; Scott Baker LJ; Sir Charles Mantell. 4th April 2006.

Murrell v Healy [2001] EWCA Civ 486 Settlement : Successive Claims : Where the injuries in the first of two successive accidents impacted upon the assessment of quantum in the second, the terms of the first settlement are relevant. Court must guard against double recovery. CA Waller LJ; Dyson LJ. 5th April 2001.

Mutuma v London Borough Of Barnet [2002] EWCA Civ 674 Leave to appeal granted : but findings of fact against applicant : Local Authority had lost papers. Mediation highly advised with a severe warning of cost implications for a trial, with or without mediation. Ward LJ; Sedley LJ.26th April 2002.

N G Bailey & Co Ltd. v Amec Design & Management Ltd. [2003] EWHC 9012 (Costs) Privilege : Disclosure : decision of District Judge Harrison in a Donald McCreery v Massey Plastic Fabrications Ltd 23 January 2003. disapproved. Master Rogers, Costs Judge. 6th October 2003.

N v N [1999] Fam.Div LTL AC7800507 Arbitration misnamed as mediation. Jurisdiction over a pre-nuptial agreement - stated as mediation but in effect a Beth Din Arbitration under Jewish Law. Court refused to order a party to attend before the court of the Chief Rabbi and to commence writ of divorce. Wall J. 1st July 1999.

Nakhjavani v Theophilou Pelagias [2005] EWCA Civ 908 CA advised (ADR) mediation before remitting the case to court for further consideration. Failing that the judge at case management should facilitate settlement negotiations. Arden LJ, Keene LJ, Mr Justice Wilson. 17th June 2005

National Westminster Bank Plc v Feeney & Anor [2006] EWHC 90066 (Costs) Costs : Where the parties agree to bear their own costs of a mediation a Tomlin Order should with respect to costs respect that agreement, which would override that aspects of a Tomlin Order that failed to do so. Master Campbell: Supreme Court Costs Office. 30th November 2006

Neal v Jones Motors [2002] EWCA Civ 1730/1731/1759 Failure to mediate : Costs : CA deducted ?5,000 from the winning appellant?s costs because of a failure to mediate which resulted in an unnecessary two day hearing. Also reported by CEDR. Rix LJ; Brooke LJ; Keene LJ. 31st October 2002.

Neave v Neave [2003] EWCA Civ 325 Part 36 Offer : Costs : Judgment less than offer : Costs follow event of losing the bidding war : Lord Justices Potter; Chadwick; Tuckey.6th February 2003

Nedlloyd Lines UK Ltd v CEL Group Ltd [2003] EWCA Civ 1871 Costs : Indemnity : Part 36 Offer beaten at 1st instance & on appeal : CA : Waller LJ, Hale LJ, Carnwath LJ. 18th December 2003.

Newall v Lewis [2008] EWHC 910 (Ch) Trust dispute : Benefit of partial settlement by beneficiaries through mediation : Removal of trustees. Mr Justice Briggs. 30th April 2008.

Newmans (I N) Ltd v Richard T Adlem [2004] EWHC 1563 (Ch) Lawtel AC0106810 Cost penalty imposed for unreasonable rejection of payment in. IP dispute - both parties entitled to use a disputed name. Ch D (Patents Ct). David Young QC. 12th August 2004

Nicholas Drukker & Co v Pridie Brewster & Co [2005] EWHC 2788 (QB) Failed / abandoned mediation. Drukker sought via a detailed costs assessment to recover liquidation management fees, which was countered by allegations of professional negligence. Assessment stayed to mediation. Stay eventually lifted after mediation abandoned. Attempt to rely on allegations of negligence to challenge costs crossed out for abuse of process. QBD Costs Appeal.Openshaw J, Master Campbell, John Bucklow. 12th December 2005


Nicholson v Knox Ukiwa & Co (a firm) [2008] EWHC 1222 (QB) Dispute as to whether a mediated settlement was inclusive or exclusive of interest. Mr Justice Saunders. 2nd June 2008

Nigel Witham Ltd v Smith (No. 2) [2008] EWHC 12 (TCC) Failure to mediate : Costs : No penalty for failure to mediate where it was clear that early mediation could not have produced a settlement. Coulson J. 4th January 2008

Noga v Australia & N.Z. Banking Group Ltd [1999] CA. Without prejudice - Privilege. Terms of without prejudice settlement agreement not available to defence lawyers in subsequent litigation. Evans LJ; Judge LJ. 10th December 1999.

Nokia Corporation v Interdigital Technology Corporation [2005] EWHC 2134. Lawtel AC9900784 Court ordered mediation not available in the UK. Halsey applied. Chancery Division, Patents Court. Pumfrey J. 26th August 2005


Norris v Norris : Haskins v Haskins [2003] EWCA Civ 1084 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. Lord Justices Thorpe & Mantell.28th July 2003

Norwich Union Life Insurance Society v Tony Waller Ltd [1984] LAWTEL AC2747471 Privilege : General correspondence : The words ?Without Prejudice? have no impact in relation to general correspondence that occurred at a time when the parties were not in dispute.
Harman HHJ : Chancery. 16th February 1984

O'Callaghan v Coral Racing Ltd [1998] EWCA Civ 1801 Arbitration or non-binding mediation : Dispute settlement clause in a betting agreement held not to be arbitration : not enforceable due to Statute of Frauds gambling esception would make it illegal for arbiter to enforce : since it did not lead to the enforcement of a legal right - not arbitration : Conclusion - non-binding mediation agreement or expert determination. Hist LJ; May LJ: Slade, Sir Christopher. 19th November 1998.

O'Connell, Whelan & Watson [2005] EWCA Civ 759 McKenzie Friends : Disclosure - confidentiality and mediation in family disputes. CA. Thorpe LJ. Wall LJ. 22nd June 2005.

OEM Plc v Schneider [2005] EWHC 1072 (Ch) Stay of action pending mediation. Smith. The Honourable Mr Justice Peter. 26th May 2005.

Oil & Mineral Development Corp v Mahdi Sajjad [2001] ADR.L.R. 12/12 Written Form : Settlement : Mediation settlement was not reduced to writing : enforcement refused : mediation terms prevent mediator giving evidence ? so settlement must be written. Morrison J. 12th December 2001.

Optical Express (Southern) Ltd v Birmingham City Council [2003] EWLands ACQ_109_2002 Without prejudice offers : Piercing the privilege veil. Lands Tribunal England & Wales. P H Clarke FRICS. 27th August 2003

Optimum Solution Ltd v Yorkshire Electricity Group Plc [2001] ChD Lawtel AC0101855 The applicants learnt though without prejudice discolosures that the sole assets of a business in liquidation were to be disposed of and sought to bring that information to the notice of the court. Held : In the circumstances the privilege would be overridden. Mr Justice Hart. 26th February 2001.

Osborn (B) & Co Ltd v Dior [2003] EWCA Civ 281 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. Brown LJ Simon; Sedley LJ; Arden LJ. 22nd January 2003.

Otobo v Otobo [2002] EWCA Civ 949 Appelant, asserting rights to matrimonial property in a dispute as to the status of their marriage in Nigeria, was prepared to mediate under the London Scheme. The respondant was only prepared to mediate in Lagos. The court countered that mediation "is independent of legal systems and imports skills and techniques which are not legal skills." Dame Elizabeth Butler-Sloss; Thorpe LJ; Buxton LJ. 2nd July 2002.

P4 Ltd. v Unite Integrated Solutions Plc [2006] EWHC 2924 (TCC) Costs - failure to mediate : Failure to beat payment in : failure by successful defendant to make disclosure during case management. Application of CPR Rule 36.20(2). TCC. Mr Justice Ramsey. 17th November 2006.

Painting v University of Oxford [2005] EWCA Civ 161 Costs : Payment in - Part 36 : Absence of counter proposal or willingness to negotiate resulted in costs penalty. Longmore LJ; Maurice Kay LJ. CA. 3rd February 2005.

Palfrey v Wilson [2007] EWCA Civ 94 Settlement versus mediation offer : Costs. Dispute about ownership of a wall. Defendant offered for wall to be designated a party wall. Rejected - counter offer of mediation not taken up. Claim ultimately failed and costs ordered on an indemnity basis upon rejection of the initial offer. Failed appeals both on ownership and on costs. Having made constructive offers there was no requirement to enter into mediation. Tuckey LJ; Arden LJ; Lawrence Collins LJ. 15th February 2007.

Parks v Clout [2003] EWCA Civ 893 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. Thorpe LJ; Mr Justice Jacob. 10th July 2003.

Parry Deborah J & Whelan Michael T v News Group Newspapers Ltd [1990] LAWTEL AC1912031 Privilege : Records. A solicitor?s note recording that a telephone conversation took place is not privileged though the content of the conversation may well be privileged. Thus it could be used as the basis of further discoveries of related relevant material. Not professional privilege. CA. Stocker LJ; Dillon LJ; Bingham LJ. 22nd November 1990

Partridge v Lawrence [2003] EWCA Civ 1122 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. Peter Gibson LJ; Clarke LJ; Dyson LJ. 8th July 2003.

Paul Thomas Construction Ltd v Hyland [2000] CILL 6/0 /1743 Indemnity costs less ADR cost : Cost hearing on failed s24/25 CPR applications by a domestic house builders who provided no final account and refused to wait for D?s valuation reported. Also Reported by CEDR. HHJ Wilcox. 8th March 2000.

Pengelly v Enright-Redding [2005] EWCA Civ 1639 Family Mediation : Rescheduled with approval of the court for the purpose of restoring / improving communications between separated parents to enable them to cooperate together over access etc for the benfit of the child. CA on appeal from Exeter County Court (HHJ Mackintosh) before Thorpe LJ; Scott Baker LJ; Wall LJ. 9th November 2005.

Pentland-Clark v. Wilson [2006] CSOH_151 Succession : Mediated settlement between beneficiaries and trustees. 20 years after event claimant sought to litigate claim : asserted mediation settlement dissipated funds frustrating her claim. Held : Claim dismissed. Lady Clark. Outer House of Session. 29th September 2006

Percy v. Church of Scotland Board of National Mission (Scotland) [2005] UKHL 73 Privacy : House of Lords held that the applicant, a Church Minister had a contract of employment and was entitled to pursue a claim for Sexual Discrimination before an Employment Tribunal. In the interests of privacy Baroness Hale commended mediation in lieu of further litigation. H.L. Lords Nicholls; Hoffmann; Hope; Scott & Baroness Hale. 15th December 2005

Perlman (George) v Rayden [2004] EWHC 2192 (Ch) Litigation v Mediation : Neighbour dispute - access: Following two failed mediations, the court acknowledged that the time for negotiation had passed and the only way to end the dispute was through litigation. The Honourable Mr Justice Patten. 7th October 2004.

Perry Press v Chipperfield & Stern [2003] EWCA 484 : Lawtel AC9900500 Settlement offer - ?4K plus reasonable costs - insufficiently precise to be taken into account for a costs order. Buxton LJ, Dyson LJ. 25th March 2003.

Peter Crouch v King's Healthcare NHS Trust [2004] EWCA Civ 1332 : Bailii Settlement offer : Costs. Provided an offer to settle was in clear terms equivalent to a payment in it would be treated as such for the purpose of assessent of costs. Waller LJ, Mance LJ, Staughton. Sir Christopher. 15th October 2004.

Petromec Inc v Petroleo Brasileiro SA Petrobras [2005] EWCA Civ 891 Agreement to agree : Good Faith agreement. Distinguishing Walford v Miles, CA expressed the obiter view that the court may be able to render some legal assistance to the parties to such an agreement, where incorporated as an express term of the contract. Bad faith equated with fraud. Damages quantifiable on basis of reasonable costs. Scope of application however very narrow. Pill LJ, Mance LJ, Longmore LJ. 15th July 2005

Phelps v Stewarts (a firm) & Anor [2007] EWHC 1561 (Ch) Contribution under Civil Liability Contribution Act to a mediated settlement : Failed application. Bernard Livesey QC. 2nd July 2007.

Pilkington v CGU Insurance [2004] EWCA Civ 23 Attempt to recover sums paid out in a mediation settlement from underwriters. Potter LJ, Jonathan Parker LJ Mr Justice Charles : 28th January 2004.

Placito v Slater [2003] EWCA Civ 1863 Time bar : Contractual : Voluntary waiver of right to trial. CA. Potter LJ; Laws LJ ; Arden LJ. 19th December 2003

Prentice v Portland [2004] Scots SC 117 . Construction Dispute : Claimant confronted with a massive counterclaim declined to mediate. Claim succeeded, counterclaim failed. Held : Principle of proportionality applied to costs issue - no cost iomplications for refusal. First Div. Inner House Court of Session. Lords President; Penrose; Clarke. 21st May 2004.

Professional Information Technology Consultants Ltd v Jones [2001] EWCA Civ 2103 : Lawtel AC9600428 One third cost penalty awarded against successful claimant. Claim amended in court. Whilst the payment in was beaten, the defendant may have increased the sum if the final version of pleadings had been on the table. Peter Gibson LJ, Arden LJ. 7th December 2001.

Prudential Insurance Co America v Prudential Assurance Co Ltd [2002] EWCA 1154 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." Schiemann LJ; Chadwick LJ; Jonathan Parker LJ. 31st July 2003.

Punjab National Bank v Parash [2004] EWCA 589 Court declined to order mediation because mediation can be expensive and one party was of limited financial means. Mance LJ; Jacob LJ. 30th April 2004.

R (A&B) v East Sussex County Council [2005] EWHC 585 (Admin) Refusal to Mediate : The Court was entitled to ignore the applicants' refusals to mediate when considering costs. It was not unreasonable for the applicants to take the view that the terms of reference proposed by the local authority were inappropriate and that mediation was likely to be futile. HHJ Mumby. 11th April 2005.

R G Carter Ltd v Edmund Nuttall Ltd (2002) BLR 359 Mediation and adjudication : Mandatory mediation provisions cannot override the statutory right to refer a construction dispute to adjudication under Part II HGCRA 1996. HHJ Bowsher. 18th April 2002.

Raglan Housing Association v Southhampton City Council [2006] EWCA Civ 1567 Public Law : Mediation : Application to appeal a point of law - granted subject to an undertaking to mediate. Sir Andrew Morritt. 24th October 2006

RBG Resources Plc (In Liquidation) v Rastogi [2005] EWHC 994 (Ch) Failed Mediation : Costs : Mediation and subsequent settlement negotiations failed because of an insistence on an appology, which in the circumstances the liquidators could not professionally provide. This conduct deprived him of any costs allowance that might otherwise have been available to him for good conduct in the litigation. The Honourable Mr Justice Lightman. 24th May 2005.

Re Anglo American Insurance Co Ltd [2000] ChD. Lawtel AC0100565 Court held that the content of "Without prejudice" correspondence should not be disclosed in court. NB : Nonetheless the correspondence facilitates the formulations of questions for cross examination. HHJ Neuberger. 8th November 2000.

RE H (A minor) [1997] EWCA Civ 1436 (17th April, 1997) Court Welfare Officer as mediator : Court speculated as to whether the Court Welfare Officer could serve as a mediator - or identify what services available locally. Millett LJ; Ward LJ. 17th April 1997.

Reed Executive Plc v Reed Business Information Ltd [2004] EWCA Civ 159 Application for Appeal approved - but court considered there was scope for the parties to enter negotiations / mediation at the same time. Auld LJ; Rix LJ; Jacobs LJ. 3rd March 2004

Reed Executive Plc v Reed Business Information Ltd [2004] EWCA CIV 887 Defendant twice rejected overtures to mediate. Following Halsey, the court declined order costs against defendant. Large distance between the parties positions; novel issues needed a judicial decision so prospects poor. Auld LJ; Rix LJ; Jacobs LJ; 14th July 2004.

Richards v Davis [2005] EWHC 90014 (Costs) Insurance : Legal Costs underwriters, not parties to a settlement agreement between the parties to a road accident, are not bound by the terms of the settlement. Accordingly, it is not an abuse of process for them to assert that the terms of a CFA had not been complied with. Master Hurst, Senior Costs Judge. 25th November 2005

Rickards v Jones [2002] EWCA Civ 260 Stay of proceedings pending ADR : The house purchaser claimant?s defendant solicitor failed to ensure NHBC cover for a property. The court ordered three party ADR involving NHBC & Solicitor. Mance LJ; Mrs Justice Smith. 13th October 2000.

Rio Properties v Gibson Dunn & Crutcher [2005] EWCA Civ 534 Settlement offer : Costs. An offer to pay costs related to third party claims was held to be too vague to be evaluated and determinated. Therefore it would not be taken into account as a payment in for cost purposes.Parker LJ, Jonathon : Arden LJ. 22nd April 2005.

Riverside Property Investments Ltd. v Blackhawk Automotive [2004] EWHC 3052 This case is highlighted merely as an example of the value of mediation, even if the dispute was not entirely settled. Here mediation successfully resolved most of the issues, leaving a mere two issues for the court to deal with. HHJ Peter Coulson. 8th December 2004.

Robin Ellis Ltd v. Malwright Ltd [1999] EWHC TCC 256 Without prejudice - expert witness meetings : Held : Communications between experts seeking to reach an agreed view are privileged, but the terms of the agreement are not. HHJ Bowsher. 1st February 1999.

Robinson v Hammersmith and Fulham [2006] EWCA Civ 1122 Mediation : Public Law : Mediation whilst useful should not detract from an authority's duty to house an underaged homeless person. Council initiated mediation re a child applicant for housing - whereby the child might come of age in the intervening period taking the applicant outside priority housing status. CA : Waller LJ; Jonathan Parker LJ; Jacob LJ. 28th July 2006

Rodney David Haines v Lynne Valerie Carter [2002] UKPC 49 Breach of Good Faith undertaking in mediated settlement. Terms of mediated settlement included re-opening up the settlement by mediator if allegation of breach of good faith provision established Note that the mediators had power to devise and impose the terms of the settlement i.e. a form of binding conciliation. Lords Bingham; Slynn; Nicholls; Rodger; Rt. Hon. Justice Tipping. 7th October 2002.

Rodriguez-Bannister v Somerset Partnership NHS Trust [2003] EWHC 2184 "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." Mr Justice Hooper. 22nd August 2003.

Ronald Harry Bailey v Matthew George Warren [2006] EWCA Civ 51 Capacity : Settlement agreement : Did a patient have the capacity to agree? In the circumstances the CA felt the agreement was not tainted by duress or wrong doing - and thus not set aside. However, court indicated that the legal representative might be liable for a negligently low settlement and hence an alternative remedy might be available by other means. CA. Ward LJ ; Arden LJ; Hallett LJ. 7th February 2006.

Rose v Cox [1999] EWCA Civ 608 Court Mediation Scheme : Adjournment granted : Court urged parties to mediate. Evans LJ; Thorpe LJ. 19th January 1999.

Rose v Rose [2002] EWCA Civ 208 FDR Hearing. Application to vacate court order confirming agreed settlement terms. CA analysed the nature of an FDR negotiation. Lord Phillips MR, Thorpe LJ; Buxton LJ.20th February, 2002

Royal Bank of Canada Trust Corporation Ltd v Secretary of State for Defence [2003] EWHC 1479 (Ch) 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. Also Reported by CEDR. Mr Justice Lewison. 14th May 2003.

Rye v Sheffield City Council [1997] EWCA Civ 2257 Public Law : Mediation or single expert report to court most appropriate way of dealing with question as to whether or not a grant is available for renovation work. Judicial review inappropriate since it is a question of fact not of reasonableness and JR would not provide a remedy for the applicant. Lord Woolf MR, Morrit LJ, Pill LJ on unsuccessful appeal from HHJ Mance.1997


S (a child) [2002] EWCA Civ 1941 Reunite Contact Mediation : Brief mention of and welcome for the contact mediation process being piloted by Reunite for European jurisdictions - outlining the multi-national litigation that sucha service may have prevented. Baker Mr Justice Scott; Munby Mr Justice; Thorpe LJ. 27th November 2002.

S (a child), Re [2004] EWCA Civ 1790 Cultural Impact : Family mediation : CAFCASS officer and mediator drawn from the Muslim community recommended to tray and build bridges between a husband and wife to facilitate access to offspring. Arden LJ; Neuberger LJ; Thorpe LJ. 1st December 2004.

Sampson v John Boddy Timber Ltd [1995] CA. Lawtel AC0002441 A party will not be penalised by a wasted costs order for seeking to rely on priviled information (an offer, not stated to be without prejudice) where the question of privilege was arguable. Sir Thomas Bingham MR, Evans LJ, Aldous LJ. 11th May 1995.

Sarah Binch v David Freeman (2005) Lawtel AC0110543 Costs : Proceedings commenced prematurely : No effort made to negotiated : However, this had not prevented the defendants pursuing negotations even at that stage but they did nothing. Eventually the defendant made a payment in that was accepted. Court found defendant liable for costs to that date. HHJ Jack. 6th December 2005.

Savings & Investment Bank v Fincken [2003] EWCA Civ 1630 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. Rix LJ; Carnath LJ. 14th November 2003

Scammell v Dicker [2000] EWCA Civ 352 Jurisdiction : Compromise : Withrawal of Part 36 Offer : Lord Justices Aldous & Mance. 21st December 2000

Schering Corp v CIPLA Ltd [2004] EWHC 2587 (Ch) Lawtel The label "without prejudice" without more was insufficient to ensure protection. In the circumstances there was a clear intention to negotiate that would be appreciated by the objective reciever so document protected. Mr Justice Laddie. 10th November 2004.

Secretary of State for Defence v Farrow System Ltd [ 2005] BL O/008/05 : Application for revocation of a patent. Request for a mediation order denied. Halsey makes it clear that extra-ordinary circumstances are required to make such an order and this was not such a case. Mr P M Back, Divisional Director acting for the Comptroller. 5th January 2005.

Shinedean Ltd. v Alldown Demolition (London) Ltd [2005] EWHC 2319 (TCC) Negotiated Settlement : defendant in liquidation. Third party liability of insurance company. Alleged breach of claim's procedure. His Honour Judge Richard Havery Q.C. 28th October 2005

Shirayama Shokusan Co Ltd v Danovo Ltd [2003] EWHC 3006 (Ch) Court ordered mediation CPR 1(4): Dispute over lease and trespass for advertising ? allegations of dishonesty : Respondent applied for court ordered mediation ? application granted. Also Reported by CEDR. Mr Justice Blackburne. 5th December 2003.

Simmons Gainsford LLP v Arvind Raichand Shah [2008] EWHC 2554 (Ch) Lawtel AC0118759 Rectification : Mediation settlement : whether rectification available - whether party owed duty of disclosure during mediation : Held : No duty : applicant made his own assessment of risk : no rectification. Sales J. 24th October 2008.

Simpson v Bowker [2007] EWCA Civ 772 Company in liquidation : CVA entered into - terms including legal costs of litigation of a claim against a debtor company to be reimbursed. Simpson a director funded litigation but settled through mediation. He recieved his legal costs but failed to recover the settlement / mediation costs : Held : recovery goverened by the terms of the CVA. Settlement costs not covered, so not recoverable. Mummery LJ; Laws LJ; Moses LJ. 26th July 2007.

Sinclair Roche & Temperley (a firm) v Somatra Ltd [2003] EWCA Civ 1474 Privilege : Application for disclosure of documents refused. CA.Schiemann LJ, Tuckey LJ, Longmore LJ : 23rd October 2003.

SITA v Watson and Wyatt: Maxwell Batley [2002] EWHC 2401 / 2025 (Ch) Failure to mediate : Costs :Pt 20 Defendants : The court held that on the facts a refusal to mediate was reasonable and justified. A mediation would have achieved nothing, so there was no impact on costs. Also Reported by CEDR. Mr Justice Park : 14th November 2002

Slough Borough Council v Prashar & Ors [2004] EWCA Civ 671 Court mediation ? application for stay : During application for appeal mediation had been agreed but had not been possible within the time frame. One party requested an adjournment of the appeal hearing to carry out the mediation : Court declined, heard the case and dismissed the appeal. Peter Gibson LJ; Rix LJ; Longmore LJ. 14th May 2004.

Smith Group Plc v Weiss (2002) Ch.D Privilege : Without prejudice negotiations and communications : Accidental reference to negotiation documents in a list provided to the court is insufficient reason to justify a waiver of privilege and does not compromise the confidentiality of the Without Prejudice negotiations. The details of the offer were not disclosed. Also Reported by CEDR. Mr Roger Kaye Q.C. 22nd March 2002.

Somatra Ltd v Sinclair Roche & Temperley [2000] EWHC Com 1627 Privilege : Without prejudice : Justice requires that where one party discloses without prejudice material to the court, the other party can also rely on that material in that and other trials. (2000) 1 WLR 2453 Waller LJ; Clarke LJ. 26th July 2000.

South Shropshire District Council v Amos [1985] S3275 25.07.1986 CA Without prejudice and privilege : Amos sent two without prejudice offers with terms for compensation. The council wanted to use them in evidence at a Land Tribunal : Held Privileged. Also Reported by CEDR. Parker LJ; Balcombe LJ. 25th July 1986.

Specialist Ceiling Contractors v. ZVI Construction [2004] EWHC 4T-0006 1 (TCC) Without prejudice : Claimant disclosed existence of but not details of a rejected without prejudice offer : Held ? knowledge alone of offers does not result in bias. HHJ S.P.Grenfell. Leeds. 27th February 2004.

Standin Phillip & Patricia v Yenton Minster Homes Ltd & NHBC [1991] LAWTEL AC1602201 Privilege : Insurance claim documents : Correspondence related to insurance claim settlement negotiations privileged but the claim form and response documents are not. CA Lloyd LJ Gibson LJ Ralph Staughton LJ : 28th June 1991

Steed v Secretary Of State For Home Office [1998] EWCA Civ 762 ADR versus litigation : Court expressed the opinion that the case would be best determined either by mediation or expert determination by a surveyor. Beldam LJ; Ward LJ. 1st May 1998.

Stocking v Montila [2007] EWHC 56 (Ch) Rejected settlement offer : Costs. Partnership dispute. Settlement offer made without any terms of reference. At trial expert reports produced regarding respective shares in business and rent due for occupation of partnership property. Court held : the reports were needed not just for the trial but for dissolution of partnership. Rejection of a bare offer without explanation of how calculated was justifiable. No costs order made. Rimer J. Ch.Div. 26th January 2007.

Strachey v Ramage [2008] EWCA Civ 804 Costs : Refusal to mediate following strong advice from trial judge during case management : Costs penalty. Sedley LJ; Rimer LJ; Sir Paul Kennedy. 16th July 2008.

Stuart Baddely & Margaret Allman v I.E.Barker [2003] EWCA Civ 742 Court Mediation Scheme Nuisance to neighbours caused by drainage and sewage problems : Court commended the Court Mediation service to the parties. Ward LJ; Buxton LJ; Mance LJ.7th May 2003.

Sutcliff (A.M.) v Thirkell (A) [2001] ChD Lawtel AC9200255 S&T, mortgagees of a property separated and agreed that T would expend best efforts to buy out S's share of the property valued at ?85K for ?10K within a reasonable time. Without prejudice negotiations ensued off and on for 3 years. Did this stop time running? Held : No. Agreement enforceable at agreed value. HHJ Hedley. 8th June 2001.

Tarajan Overseas Limited v. Donald Lee Kaye [2001] EWCA Civ 1859 Case management ? stay of action : Case management : Order for overseas directors to attend CM session overturned ? they knew nothing ? better for involved locals to attend. Also Reported by CEDR. Tuckey LJ; Pitchford LJ. 27th November 2001.

Target Holding v Oxborough [1999] CA Lawtel AC9500470 Possession order sought for default on a mortgage. Over the next 8 years there were protracted negotiations which ultimately failed. Application to enforce possession order granted : application to strike out for want of prosecution denied. Kennedy LJ; Mummery LJ; Mantell LJ. 28th October 1999.

TBV Power Ltd v ELM Energy & Recycling (UK) Ltd [1997] EWCA Civ 854 Without prejudice negotations : admissibility to determine whether or not they resulted in an agreement and if so the terms of Evans LJ; Hobhouse LJ; Mummery LJ. 27th January 1997

Telewest Ltd v Yorkshire Electrictiy Distribution Plc (2005) Lawtel AC0110138 Mediation recommended : Concerned a dispute as to supply facilities between two companies. Court recommended an inhouse mediation system between the two companies rather than litigation. QBD (Leeds). His Honour Judge Grenfell. 11th December 2005

Thakrar v Ciro Citterio Menswear Plc [2002] EWHC 1975 (Ch) Settlement : Liquidation : Application for specific performance of a compromise agreement : The Vice Chancellor Ch. Div refused to endorse or otherwise criticise the terms of a mediated compromise leaving it to the Insolvency Court to deal with. Vice Chancellor. 1st October 2002.

Thakrar v Thakrar [2002] EWCA Civ 1304 Settlement : Liquidation : Mediated settlement agreement and Tomlin Order enforced, keeping funds out of the reach of liquidators. Chadwick LJ; Robert Walker LJ. 13th August 2002.

Thor Navigation Inc. v Ingosstrakh Insurance Co Ltd. [2005] EWHC 19 Entitlement and quantum : Parties litigated matters of entitlement leaving matters concerning quantum to negotiated settlement / mediation. The Honourable Mrs Justice Gloster DBE. 14th January 2005.

Three Rivers D.C. v Governor Bank of England [2004] EWCA Civ 218 Legal Privilege : Advice by lawyers on presentation at a Legal Inquiry is not protected by legal privilege. Problem - how to separate legal advice from presentational advice? Lord Phillips, Longmore LJ; Thomas LJ.1st March 2004.

Tonner v Reiach & Hall [2005] ScotCS CSOH_103 Negotiation and striking out : Delay of prosecution : Extended period of time for negotiation (1988-2005)of an action sisted for negotiation: Sist recalled - case put out to trial. Lady Smith. Outer House Court of Session. 5th August 2005.

Torith Ltd v Stewart Duncan Robertson [1999] LTL C8200316 Stay of action : Mediation : A stay of action to an Employment Tribunal ordered pending the deliberations of an employment conciliation process. Lord Johnston. 2nd November 1999.

Tripp Ltd v Landor & Hawa Int. Ltd [2004] Ch.D. Stay pending mediation and interim costs order : Interim decision : Costs reserved pending the outcome of mediation when immediately prior to trial claimant eventually acceded to mediation ? since there was still a possibility that the claimant was entitled to his asserted right to a transfer of title in to a trade name. HHJ Pumfrey. 15th June 2004.

Trustees of Morden College v Mayrick [2007] EWCA Civ 4 Enforcement : Settlement agreement : assertion of mistake : Held : Where facts known settlement agreement cannot be reopened on grounds of mistake - otherwise all compromise agreements including mediated settlements would be liable to futher litigation. Chadwick, Hallett LJJ and Lindsay J. 12th January 2007.

Trustees of Stokes Pension Fund v Western Power Distribution plc [2005] EWCA Civ 854 Settlement offer : Costs : Settlement offer rejected : Lower payment in made : Award delivered in between the offer and payment in. Court treated offer as equivalent to a payment in for cost purposes. Auld LJ; Dyson LJ. 11th July 2005


Turner v Fenton [1982] 1 All.E.R. LAWTEL AC0122267 Without Prejudice : Waiver : A reference to without prejudice correspondence in an affidavit resulted in a waiver of the without prejudice privilege. Rendering the letter admissible. A stay to arbitration refused because professional reputation at state and the action involved interpretation of partnership deeds. Stay denied. Charles Osenton & Co v.Johnston (1942) AC.130 applied. Warner HHJ : 1982

Unilever plc v Proctor & Gamble [2000] FSR 344 Without prejudice - copyright : A threat to take legal proceedings to protect a copyright made during negotiations is privileged and cannot be used as a ground for legal action. The Honourable Mr Justice Laddie. 15th December 1998.

United Building & Plumbing Contractors v Kajla [2001] EWCA Civ 1740 Oral offer of compromise a building dispute: Permission to appeal granted to introduce evidence. Henry LJ. 15th November 2001.

United Building & Plumbing Contractors v Kajla [2002] EWCA Civ 628 Admissibility of information disclosed in settlement negotiation non-admissible unless both parties consent or as in this case the other party puts details of the negotation to the court. Costs of a non-qualified legal adviser not recoverable. Oral offer to compromise claim - which exceeded the final award to be taken into account in assessing costs. Balancing out conduct of both parties, court held that costs cancelled each other out - so no costs awarded. Tuckey KJ; Rix LJ. 26th April 2002.

UPS Supply Chain Solutions v. Glasgow Airport Ltd [2007] ScotCS CSOH_202 Frustrated mediation - costs : Trial preparation and mediation well progressed when the claimant introduced a new claim for lost profits : once both parties had eventually fulfilled accountancy procedures in order to evaluate the claim the claim was dropped as being unrealistic. Held : Costs from the date of the amended claim recoverable by the other party. Lord Glennie. Outer House Court of Session. 19th December 2007

Vahidi v Fairstead House School Trust Ltd [2005] EWCA Civ 765 Mediation versus litigation. Claim and appeal for damages for stress at work failed. Court observed that this area is so well worked out legally that there is no reason for expensive litigation and that such disputes should be mediated. Longmore LJ, Scott Baker LJ; Ward LJ. 9th June 2005.

Valentine v Allen [2002] EWCA Civ 1819 Failure to mediate : Application to appeal failed : 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. Laws LJ; Arden LJ; 9th October 2002.

Valentine v Allen [2003] EWCA Civ 915 Application to appeal eventually granted : Appeal failed. CA : Peter Gibson LJ, Chadwick LJ, Lady Justice Hale.4th July 2003

Vedatech Corp v Crystal Decision UK Ltd & Crystal Decisions (Japan) KK [2003] EWCA Civ 1066 Fraudulent Settlement : Mediation settlement allegedly induced by fraud. Pill LJ; Carnwath LJ; Mr Justice Maurice Kay. 3rd July 2003.

Veitch v Avery Barry & Co [2002] EWCA Civ 1342 Case sent back for reconsideration because original decision made without reference to an amended statement of claim. Court anticipated applicants likely to fail and be left with extensive costs and urged mediation - but in no real hope of the applicants so doing because of the level of bad feeling. Ward LJ; Tuckey LJ. 26th July 2002.

Vellacott v The Convergence Group Plc [2007] EWHC 1774 (Ch) Costs to include the wasted costs of a mediation. What was on offer at that time was far in excess of what the party had been entitled to recover. S51 SCA 1981 provides that the court has the power to award \"the costs of and incidental to the proceedings.\" The sense of the words \"and incidental to\" is to extend rather than restrict what the receiving party is entitled to recover. Para 17.3 Chancery Guide, 2005, recognises that the court may make costs orders in respect of any recourse the parties may have to an ADR. Mr Justice Rimer. 31st July 2007.

Venture Investment Placement Ltd v Hall (2005) ChD.Lawtel 18/5/2005 Successful application for injunction to prevent a party to a failed mediation disclosing privileged information about the conduct of the mediation and assertions of things said during the process. HHJ Reid QC. 16th May 2005.

Victor Kermit Kiam II v MGN Ltd [2002] EWCA Civ 66 Settlement offer under CPR36.3 can lead to a standard costs penalty : but not on an indemnity basis under CPR 44. Simon Brown LJ, Waller LJ, Sedley LJ. 6th February 2002.

W H Smith Ltd v Peter Colman (2000) FSR 9 Privilege : Without prejudice : Burden of proof - to pierce the veil - unambiguous impropriety - not satisfied by an implausible case. Beldam LJ, Robert Walker LJ. CA. 20th March 2000.

Walford v Miles [1992] 2 AC 128 Negotiation Agreements : Agreement to negotiate in good faith unenforceable. See also May v Butcher. Lords Keith; Ackner; Goff; Jauncey; Browne-Wilkinson. 23rd January 1992.

Walker Residential Ltd v Davis [2005] Lawtel AC9100839 Mandatory Costs Order : A claimant is entitled to a costs order up to the date of acceptance of a Part 36 Payment In - the court cannot limit costs to the date of the original offer. Park J. Chancery Division. 9th December 2005.

Walsh v Misseldine [2000] EWCA Civ 61 Medical claims suitable for ADR : Court considered the grounds for striking out under both the old regime and under the CPR. Makes a brief reference to mediation and overriding objectives. Stuart-Smith LJ; Brooke LJ. 29th February 2000.

Wethered Estate Ltd v M&A Davis : Foundations for Living [2005] EWHC 1903 (Ch) Costs :Delay in mediation : Whether earlier refusal pending clarification of the case of each party reasonable : Whether claimant beat a settlement offer - impact of non-pecuniary orders : Deputy Judge Clive Freedman QC. 15th July 2005.

Whapples, R (on the application of) v Birmingham East & North Primary Care Trust [2008] EWCA Civ 465 Application for permission to claim judicial review on the ground that the defendant public body acted unreasonably in not agreeing to mediation of the dispute between the parties be refused; Refusal appealed : Whilst it is surprising how frequently even the most intractable case produces a satisfactory outcome in mediation ... that is a million miles away from saying that it is so unreasonable of a party not to undertake mediation at a stage before litigation. That argument, in my view, simply cannot run. Ward LJ; Thomas LJ. 7th April 2008.

Whitecap Leisure Ltd v John H Rundle Ltd [2008] EWCA Civ 1026 Failure to mediate : Costs - 20% reduction in recoverable costs to reflect behaviour of claimant in rejecting payment in / mediation. CA. Ward LJ; Wall LJ; Moore-Bick LJ. 16th July 2008.

Wilkinson v West Coast Capital [2005] EWHC 1606 (Ch) Without prejudice negotiations - admissibility. In order to adduce evidence previously disclosed in without prejudice negotiations independent evidence not arising out of the negotiations required. Chancery Division. Mr Justice Mann. 22nd July 2005.

Williams v Lindley [2005] EWCA Civ 103. Court advised Mediation : Following a successful appeal, a retrial ordered. Court urged mediation as an alternative. Buxton LJ; Smith LJ; Thorpe LJ. 10th February 2005.

Willis Management (Isle Of Man) Ltd v Cable and Wireless Plc [2005] EWCA Civ 806 No binding agreement concluded between parties. An agrrement to subsequently agree an essential term cannot create a binding contract. It is not for the courts to determine the terms in the absence of agreement between negotiators. Appeal from C&W v Valentine allowed. Tuckey LJ, Rix LJ, Mr Justice Wilson. 30th June 2005.

Wills (Alexandra) v Mills Solicitors [2005] EWCA Civ 591 Failure to mediate : Costs : Defendant did not engage in negotiations or mediation because claimant failed to provide basis of claim. Held : Halsey cost discount not-applicable. Behrens LJ; Mance LJ. 30th June 2005.

Wooldridge v Hayes [2005] EWHC 90007 (Costs) Mediation Costs : Recoverability and litigation insurance premium assessment. Master O'Hare, Costs Judge Supreme Court. 10th February 2005

Wright v HSBC Bank Plc No1 [2006] EWHC 930 (QB) Settlement agreeement of bank loans via sale of property : Unsuccessful attempt to rescind the settlement agreement on the grounds of misrepresentation, undue influence and duress together with claims for damages in respect of the original claims and in respect of what was said to her entitlement prior to the settlement. Held : Bank entitled to insist on settlement of debts - not economic duress. Mr. Justice Jack : QBD. 5th May 2006.

Wright v HSBC Bank Plc No2 [2006] ADR.L.R. 06/23 Mediation on terms : Cost implications. The successful defendant had only been prepared to meet to negotiate any potential outstanding exposure to the bank without accepting any further liability. Court held that it was entitled to take that position and should not be penalised in costs for refusing to renegotiate the terms of a pre-existing settlement. Mr Justice Jack : QBD. 23rd June 2006

Yell Ltd v Garton [2004] EWCA Civ 87 Negotiations : Appeal : Duty to Court. Where an appeal is pending the parties have a duty to notify the court if settlement negotiations are taking place. The hearing can be postponed pending the outcome since it can lead to savings in judicial time and effort. Peter Gibson LJ; Laws LJ; Longmore LJ. 2nd February 2004.

Yorkshire Bank v RDM [2004] QBD 30th June Claimant successful on 1 of 4 points of claim. Court ordered closts on global basis as opposed to on a claim by claim basis. Defendant had refused to mediate. Court considered there was a reasonable chance of success and upped costs awarded from 50:50 to 65:35. HHJ Langan QC. 30th June 2004.

Yorkshire Electricity Distribution Plc v Telewest Ltd [2006] EWCA Civ 1418 ADR advised : Disputes arose between YED and Telewest over disturbance and damage to underground cabling. Test case appeal to CA. Court upheld decisions of fact. Not amenable to appeal. Court made it clear there would be cost implications in future regarding litigation on these matters where the parties had failed to employ private ADR / expert determination procedures to resolve such dispute. Lord Justice Buxton; Lord Justice Sedley; Lord Justice Dyson 31st October 2006.

Youssif v Jordan [2002] EWCA Civ 1827 Court acknowleges the benefit of mediation to the pro-se claimant who has difficulties making out a legal case due to lack of advocacy skills. Pill LJ. 22nd November 2002.

Zambia v Meer Care & Desai (No2) [2007] EWHC 1540 (Ch) Failure to mediate : 5% cost penalty. Mr Justice Peter Smith : 29th June 2007


 
     
       
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