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Mediation Case Law by Date

1999 2000 2001 2002
2003 2004 2005 2006
2007 2008 2009 2010
2011 2012 2013 2014
2015 2016 2017

For an alphabetical list of cases, click here.
For a list of cases by subject, click here.

2016  Subject  Case  Update
       
       
2015  Subject  Case  Update
     
2014  Subject  Case  Update
 October 2014

Costs Sanction - not applied - in circumstances where there was an unreasonable refusal to mediate but that was not the only consideration - there had been a without prejudice save as to costs that had to be balanced against the unreasonable refusal.

Northrop Grumman Mission Systems Europe Limited -v- BAE Systems (Al Diriyah C4I) Limited - Technology and Construction Court - Mr Justice Ramsey - [2014] EWHC 3148 (TCC) 

 

May 2014

Privilege - without prejudice negotiations - Canadian law - can a Canadian court look at negotiations in a mediation to see whether there was a concluded settlement? Common law privilege can be excluded by clear drafting in the mediation agreement.

Union Carbide Canada Inc & Dow Chemical Canada Inc -v- Bombadier Inc and Others and the Attorney General of British Columbia - Supreme Court of Canada - 2014 SCC 35.

Click here >> to watch a video of the hearing

For a discussion, see Mediation Update June 2014 
 February 2014

Costs Sanction - unreasonable refusal to mediate results in costs sanction - indemnity costs ordered.

Garritt-Critchley, Phillip and Others -v- Andrew Ronnan and Solarpower PV Limited - Chancery Division, Manchester - [2014] EWHC 1774 (Ch)

 
2013  Subject  Case  Update
 October 2013

Costs Sanction - failure to reply to invitations to mediate will, as a general rule, of itself be unreasonable - decision at first instance (see January 2012 below) was upheld.

PGF II SA -v- OMFS Company -  Court of Appeal - [2013] EWCA Civ 1288.

 

June 2013

Settlement Agreement - a settlement in writing at a mediation required an employer to pay an employee the amount of £1.35 million. No mention was made in the agreement of income tax or who was to pay it. The employer paid £676,822.84 to the employee and £673,177.16 to HMRC as income tax. The employee did not succeed in persuading the court that he should have received £1.35 million (and that the employer should pay a further similar additional amount to HMRC). If the settlement agreement had included wording as to the tax position the litigation would have been avoided (assuming that the draft settlement would have survived inter-party discussion about that issue).

Barden, Michael Kieran -v- Commodities Research Unit International (Holdings) Limited, CRU Strategies Limited, CRU International Limited and CRU Publishing Limited - Chancery Division - [2013] EWHC 1633 (Ch)

 

June 2013

Settlement Agreement - solicitor had no duty to ensure that the mediation ended in an immediate binding agreement (as opposed to one which was subject to further negotiation and perfection at a later date) - the mediation process needs maximum flexibility


Frost, David -v- Wake Smith and Tofields Solicitors - Court of Appeal  - [2013] EWCA Civ 1960. 

 

April 2013

Settlement Agreement - on the facts, the Judge found that the mediation had ended on the date fixed for the mediation even though the mediator continued to be involved thereafter until a settlement reached. On that basis, the Judge found that the requirement in the mediation agreement that the settlement had to be in writing and signed before it was binding did not apply and he went on to decide that there was a settlement here in telephone calls through the mediator.

AB & AB -v- CD Limited - Technology and Construction Court - Mr Justice Edwards-Stuart - [2013] EWHC 1376 (TCC).

 
2012  Subject  Case  Update

October 2012

Costs Sanction - an offer to enter into mediation was not unreasonably refused and no cost sanction was applied.

ADS Aerospace Limited -v- EMS Global Tracking Limited - Technology and Construction Court - Mr Justice Akenhead - [2012] EWHC 2904 (TCC) 


May 2012

Agreement to mediate disputes prior to arbitration - unenforceable - no mediation procedure/rules in the agreement - cf Cable & Wireless PLC -v- IBM United Kingdom Limited - Mr Justice Colman -  [2002] EWHC 2059 (Comm).

Sulmérica CIA Nacional de Seguros SA -v- Enesa Engenharia SA - Court of Appeal - [2012] EWCA Civ 638 

 

April 2012

Costs sanction - the defendant successfully defended a claim in negligence. Its refusal to mediate, on the grounds that the claimant’s case had been without merit, was held to be a reasonable refusal and no costs sanction was imposed.

Swain Mason & Others -v- Mills & Reeve (a Firm) - Court of Appeal - [2012] EWCA Civ 498.

 
 March 2012

Encouragement to mediate - a neighbour dispute - Lord Justice Ward: “…Not all neighbours are from hell. They may simply occupy the land of bigotry. There may be no escape from hell but the boundaries of bigotry can with tact be changed by the cutting edge of reasonableness skilfully applied by a trained mediator. Give and take is often better than all or nothing.”

Faidi, Hameed and  Faidi, Inam - v – Elliot Corporation - Court of Appeal - [2012] EWCA Civ 287

 
 January 2012

Costs Sanction - unreasonable refusal to mediate was taken into account - see Court of Appeal decision at October 2013 above.

PGF II SA - v - OMFS Company and Bank of Scotland PLC - Technology and Construction Court - Mr  Recorder Furst QC - [2012] EWHC 83 (TCC).

 
2011  Subject  Case  Update

February 2011

Costs Sanction - offers to enter into settlement negotiations or mediation were unreasonably refused.

Rolfe -v- De Guerin - Court of Appeal - [2011] EWCA Civ 78.

 
2010  Subject  Case  Update

March 2010

Adjournment of trial Application for various reasons, including to permit time for mediation - application refused.

Elliott Group Limited and Others -v- GECC UK and Others - Technology and Construction Court - Mr Justice Coulson - [2010] EWHC 409 (TCC)

 
 March 2010

Encouragement to mediate - in circumstances where Mott’s cost estimate to the end of a sub-trial was £27,494,500 and Brookfield’s was £45,695,000, a total cost estimate of £73,189,500.

Brookfield Construction (UK) Limited (formerly Multiplex Constructions (UK) Limited) and Mott Macdonald Limited - Technology and Construction Court - Mr Justice Coulson - [2010] EWHC 659 (TCC).

 
 January 2010

Costs Sanction - the RSPCA’s reluctance to mediate the case was described as “unreasonable” and indemnity costs were ordered against the RSPCA on part of the claim.

Gill, Dr Christine -v- Stephen Woodall, Stanley Lonsdale and the Royal Society for the Prevention of Cruelty to Animals - Chancery Division - Mr James Allen QC (Deputy High Court Judge).  

In the Court of Appeal, the decision of the Judge was upheld, albeit on different grounds and the costs issue was not argued. >> 

 
2009  Subject  Case  Update

November 2009

Adjournment of trial  - application for various reasons, including to permit time for mediation - application refused.

Fitzroy Robinson Limited -v- Mentmore Towers Limited and Fitzroy Robinson Limited -v- Goodstart Limited and Anglo Swiss Holdings Limited (No. 2)  - Technology and Construction Court - Mr Justice Coulson - [2009] EWHC 3070 (TCC)
 August 2009

Costs sanction - consideration, post Halsey, as to whether or not there had been an unreasonable refusal to mediate

Corby Group Litigation -v- Corby District Council - Technology and Construction Court - Mr Justice Akenhead - [2009] EWHC 2109 (TCC).

 

July 2009

Lack of mediation - criticism - The Judge said that mediation would have narrowed the issues and avoided the need to deal in a public court with whether one or other of two witnesses must not be telling the truth.

Fitzroy Robinson Limited -v- Mentmore Towers Limited and Fitzroy Robinson Limited -v- Goodstart Limited and Anglo Swiss Holdings Limited - Technology and Construction Court - Mr Justice Coulson - [2009] EWHC 1552 (TCC).

 

June 2009

Costs of mediation incurred pre-action - costs thrown away by refusal to attend a mediation agreed as part of the Pre-Action Protocol procedure can be recoverable.

For an article, click here >>

Roundstone Nurseries Limited -v- Stephenson Holdings Limited - Technology and Construction Court - Mr Justice Coulson - [2009] EWHC 1431 (TCC).

 

June 2009

Costs of mediation incurred pre-action - costs thrown away by refusal to attend a mediation agreed as part of the Pre-Action Protocol procedure can be recoverable.

For an article, click here >>

Roundstone Nurseries Limited -v- Stephenson Holdings Limited - Technology and Construction Court - Mr Justice Coulson - [2009] EWHC 1431 (TCC).

 

May 2009

Reasonableness of a mediated settlement - relevance to claims against another party which was not a party to the settlement.

Siemens Building Technologies FE Limited -v- Supershield Limited - Technology and Construction Court - The Hon. Mr Justice Ramsey - [2009] EWHC 927 (TCC).

 
May 2009

Compelling mediator's attendance at court - mediator's application to set aside witness summons refused - exceptional circumstances - discussion of the law relating to confidentiality and privilege in mediation.

Farm Assist Limited (In Liquidation) -v- The Secretary of State for the Environment Food and Rural Affairs (No. 2) - Technology and Construction Court - The Hon. Mr Justice Ramsey - [2009] EWHC 1102 (TCC)

 See Mediation Update, June 2009 and see an article 
2008  Subject  Case  Update
December 2008

Agreement to mediate disputes - enforceability of agreement - necessity of mandatory obligation - other considerations as to ordering a stay of proceedings.

Balfour Beatty Construction Northern Limited –v- Modus Corovest (Blackpool) Limited  – Technology and Construction Court – Mr Justice Coulson - [2008] EWHC 3029 (TCC) see Mediation Update February 2009 

December 2008

Privilege - where a court is asked to set aside a mediated settlement on the grounds of economic duress, there is no implied waiver of legal advice by the claimant.

Farm Assist Limited (In Liquidation) -v- Secretary of State for Environment Food and Rural Affairs - Technology and Construction Court - Mr Justice Ramsay - [2008] EWHC 3079 (TCC). 

 
 September 2008

Encouragement to mediate

Multiplex Constructions (UK) Limited - v- Cleveland Bridge UK Limited and Cleveland Bridge Dorman Long Engineering Limited - Technology and Construction Court - Mr Justice Jackson - [2008] EWHC 2220 (TCC)  

April 2008

Privilege, Confidentiality and Mediator Privilege - Defendant solicitors to a negligence action in relation to contract drafting work were refused disclosure of mediation papers in circumstances where the other party to the mediation, DEFRA, objected. DEFRA were not a party to the litigation but appeared at the hearing. Acknowledgement that Mediators may have privilege in their own papers.

Cumbria Waste Management Limited, Lakeland Waste Management Limited and Baines Wilson (a Firm) - High Court - Her Honour Judge Frances Kirkham sitting as a High Court Judge - [2008] EWHC 786 (QB).  See Mediation Update May 2008 
 March 2008

Costs sanction - where both parties are unreasonable in a mediation, there is no costs sanction. However, one party acting unreasonably would be in the same position as a party refusing to mediate and, therefore, at risk of a cost sanction. Note that privilege was waived by both parties.

Malmesbury (Earl of) and Strutt & Parker and Anor - High Court - Mr Justice Jack - [2008] EWHC 424 (QB))

 
 March 2008

Costs of mediation incurred pre-action - application for security for costs - not "costs of and incidental to the proceedings" under Section 51, Supreme Court Act, 1981 - costs not recoverable.

Lobster Group Limited -v- Heidelberg Graphic Equipment Limited and Close Asset Finance Limited - Technology and Construction Court - Mr Justice Coulson - [2008] EWHC 413 (TCC)

 

January 2008

Costs sanction - a party who succeeds in litigation may be prevented from recovering some of their legal costs from the other party if the successful party had unreasonably delayed a mediation - no such order was made on the facts of this case.

Nigel Witham Limited v Robert Smith and Jacqueline Isaacs (No. 2) - Technology and Construction Court - His Honour Judge Peter Coulson QC - [2008] EWHC 12 (TCC).

 
2007  Subject  Case  Update

December 2007 

Economic duress - setting aside mediated settlement agreement - preliminary issues only - see  Mediation Update, January 2008 >> See also an article in Building: "Keeping mum about mediation." >>

Ruttle Plant Hire –v- The Secretary of State for the Environment and Rural Affairs – Technology and Construction Court – Mr Justice Ramsay – [2007] EWHC 2870 (TCC)

 
 October 2007

Encouragement to mediate - the parties spent in the region of £100,000 arguing over a claim which was worth about £6,000.

Egan -v- Motor Services (Bath) Limited - Court of Appeal - [2007] EWCA Civ 1002

 
July 2007

Privilege - disclosure to a third party, not a party to the mediation, was ordered - intervention in the proceedings by the mediator as to mediation privilege.

Cattley (Frank David George) and Pollard (Linda Jane) - Master Bragge - Chancery Division - BAILII Citation No. [2007] EWHC B16 (Ch).

 

May 2007

Privilege - refusal to allow a party to rely on matters discussed in without prejudice meetings (not in a mediation).

Framlington Group Limited and Anor –v- Ian Barnetson - Court of Appeal [2007] EWCA Civ 502. 

 
 May 2007 on appeal from the earlier decision in November 2006

Costs of mediation after proceedings started - are they recoverable on later assessment?

  

National Westminster Bank PLC -v- Thomas James Feeney and Linda Catherine Feeney - Appeal to Mr Justice Eady sitting with Assessors in May 2007 (Appeal unreported but an approved note of the decision is on CEDR's web site >>). 

The first instance decision of the Supreme Court Costs Office is at [2006] EWHC 90066 (Costs) >>

See Mediation Update, July 2007 
 April 2007

Costs of mediation after proceedings started - recoverable - court decided who should pay by looking at conduct in the mediation, the parties having waived privilege for that purpose.

Chantrey Vellacott -v- The Convergence Group PLC and Others - High Court - Mr Justice Rimer -  [2007] EWHC 1774 (Ch)

 

March 2007

Privilege - without prejudice negotiations - can the court look at negotiations in a mediation to see whether there was a concluded settlement?

Mediation Agreement - can there be a settlement if it is not recorded in writing and signed by the parties?

Brown -v- Rice and Patel and ADR Group - Chancery Division - [2007] EWHC 625 (Ch)

See Mediation Update April 2007 
2006  Subject  Case  Update

December 2006

Privilege in agreed experts' statement used in mediation does not exist.


Aird and Another -v- Prime Meridian Limited - Court of Appeal - [2006] EWCA Civ 1866

see Mediation Update January 2007 

November 2006

Costs sanction - how to approach the analysis as to whether there was or was not an unreasonable refusal to mediate and whether a cost sanction should be imposed.

P4 Limited -v- Unite Integrated Solutions PLC - Technology and Construction Court - Mr Justice Ramsey - [2006] EWHC 2924 (TCC). 

 

June 2006

Encouragement to mediate - after a trial on preliminary issues.

Multiplex Constructions (UK) Limited v Cleveland Bridge UK Limited and Cleveland Bridge Dorman Long Engineering Limited - Technology and Construction Court - [2006] EWHC 1341 (TCC)

 
 March 2006

Encouragement to mediate - costly litigation over who owned a patent.

IDA Limited and Others –v- University of Southampton and Others - Court of Appeal - [2006] EWCA Civ 145

see Mediation Update July 2006 

January 2006

Encouragement to mediate - before the re-trial of a professional negligence claim against a Doctor.

Burne, Dr SR –v- “A” - Court of Appeal - [2006] EWCA Civ 24.

see Mediation Update July 2006 
2005  Subject  Case  Update
 November 2005 Costs - without prejudice and Part 36 offer.

Hall and Another –v- Pertemps Group Limited and Another – High Court, Chancery Division, Mr Justice Lewison - reported in The Times on 23 December 2005 or see [2005] ADR LR 11/01

See Mediation Update, January 2006 

May 2005

Confidentiality /without prejudice - alleged threats made during a mediation - whether or not outside the mediation to be determined at trial - in the meantime, injunction granted to maintain confidentiality.

Venture Investment Placement Limited -v- Hall - His Honour Judge Reid QC - [2005] EWHC 1227 (Ch) - Unreported.

see Mediation Update September 2005 
 April 2005

Costs sanction - following failure to agree to mediate at a time before the start of litigation - application of Halsey principles.

Burchell NF -v- Bullard, Mr & Mrs, & Others - Court of Appeal - [2005] EWCA Civ 358.

see Mediation Update June 2005 
2004  Subject  Case  Update

July 2004

Costs sanction - consideration, post Halsey, as to whether or not there had been an unreasonable refusal to mediate - consideration of "without prejudice" rule as to disclosure of documents going to consideration of any refusal to mediate.

Reed Executive PLC and Another -v- Reed Business Information Limited and Others - Court of Appeal - [2004] EWCA Civ 887.

 
 May 2004

Costs sanction - court draws attention in clear terms to the parties and the Legal Services Commission of a failure to mediate despite encouragement to do so (following the decision in Halsey).

Couwenbergh v Valkova - Court of Appeal - [2004] EWCA Civ 676.

 
 May 2004

Costs sanction following failure to agree to mediate - principles to be applied; compulsion by court to mediate - mediation will not be forced on parties (but there may be cost sanctions).

Halsey -v- Milton Keynes General NHS Trust and Steel -v- Joy and Halliday - Court of Appeal - [2004] EWCA Civ 576.

 
May 2004

Compulsion by court to mediate - mediation will not be forced on parties (but there may be cost sanctions) -Costs sanction following failure to agree to mediate - principles to be applied.

Halsey -v- Milton Keynes General NHS Trust and Steel -v- Joy and Halliday - Court of Appeal - [2004] EWCA Civ 576   
 March 2004

Costs sanction - following the exhortation to mediate of lower tier Judge.

McMillan Williams -v- Range - Court of Appeal - [2004] EWCA Civ 294.

 
February 2004

Attendance - Court order requiring attendance of particular people at mediation? - The court held that it had jurisdiction, in order to render a court-ordered mediation efficacious, to order a party to be adequately represented at the mediation; but it would be an exorbitant exercise of jurisdiction to direct by whom the Claimants should be represented.

Shirayama Shokusan Company Ltd v Danovo Ltd (No 2) - Mr Justice Blackburne - [2004] EWHC 390 (Ch) - Unreported   
2003  Subject  Case  Update
December 2003

Compulsion by court to mediate - order to mediate made against unwilling party (but now see Halsey).

Shirayama Shokusan Company Limited and Others -v- Danovo Limited - Mr Justice Blackburne - [2003] EWHC 3006 (Ch) (acknowledgements to CEDR for the link to the judgment)   
 May 2003

Government pledge for ADR not followed (but now see Halsey) - Costs sanction.

Royal Bank of Canada -v- Secretary of State for Defence (link with acknowledgements to CEDR) - Mr Justice Lewison - [2003] EWHC 1841 (Ch)

 
 May 2003

Costs sanction - government pledge for ADR not followed (but now see Halsey).

Royal Bank of Canada -v- Secretary of State for Defence (link with acknowledgements to CEDR) - Mr Justice Lewison - [2003] EWHC 1841 (Ch).

 

March 2003

Costs sanction - party withdrew from mediation after appointment of mediator and delivery to him of submissions (but now see Halsey).

 

Leicester Circuits Limited -v- Coates Brothers PLC - Court of Appeal - [2003] EWCA Civ 333.

 
2002  Subject  Case  Update

November 2002

Costs sanction following failure to agree to mediate - not applied on grounds that mediation was not appropriate on these facts (but now see Halsey)

SITA -v- Watson Wyatt and Maxwell Batley (A Firm) (link with acknowledgements to CEDR) - Mr Justice Park - [2002] EWHC 2401 (Ch).

 
 October 2002

Agreement to mediate disputes - enforceability of agreement - adjournment of application until after mediation.

Cable & Wireless PLC -v- IBM United Kingdom Limited - Mr Justice Colman -  [2002] EWHC 2059 (Comm)   
October 2002

Insolvency -  agreement reached in mediation - enforceable (changing the decision in Thakrar -v- Thakrar - Court of Appeal - [2002] EWCA Civ 1304).

Thakrar (Kirit Lalji) -v- Ciro Citterio Menswear PLC (In Administration) - The Vice Chancellor - [2002] EWHC 1975 (Ch)

 

May 2002

Costs sanction following failure to agree to mediate - not applied on grounds that mediation was not appropriate on these facts (but now see Halsey)

Hurst -v- Leeming - Mr Justice Lightman - [2001] EWHC 1051 (Ch).

 

February 2002

Costs sanction following failure to agree to mediate (but now see Halsey).

Dunnett (Susan) -v- Railtrack PLC - Court of Appeal [2002] EWCA Civ 302. 

 
2001  Subject  Case  Update

December 2001

Costs sanction - court draws attention in clear terms to the parties and the Legal Services Commission of a failure to mediate despite encouragement to do so (following the decision in Halsey).

Cowl and Others -v- Plymouth City Council- Court of Appeal - [2001] EWCA Civ 1935.

 
       
2000  Subject  Case  Update
     
1999  Subject  Case  Update

August 1999

Kinstreet Orders” - origin of

Kinstreet Limited and Another -v- Balmargo Corporation Limited and Others - Chancery Division - The Honourable Mrs Justice Ardern (acknowledgements to CEDR for the link to the judgment).


 

July 1999

Stay of court proceedings for reasons unconnected with mediation - ordered not to be lifted until after attempt made to resolve disputes by mediation (but now see Halsey).

Muman (Sat Pal) and Others -v- Bhikku Nagasena - Court of Appeal - [1999] EWCA Civ 1742 (acknowledgements to CEDR for the link to the judgment)