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Hot tip! Do not agree to mediation unless you intend to proceed with it!

United Kingdom
24/03/2003
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If you refuse to participate in a mediation that you have already agreed to attend, you may be penalised in costs even if your case is ultimately successful.

A successful appellant suffered this fate in the Court of Appeal earlier this month (Leicester Circuits Ltd v Coates Brothers plc [2003] EWCA Civ 333) as a result of its withdrawal from a mediation to which it had previously agreed, just 2 days before it was to take place. Considering the parties' attitude toward mediation, and relying upon the judgment in Dunnett v Railtrack [2002] 1 WLR 2434, the Court made it clear that having agreed to mediation, it was not open to a party to withdraw from it because they thought it had no realistic prospect of success. While the Court did not assume that the mediation in this case would have been successful, there was a prospect it would have been, if it had been allowed to proceed. As a result, this impacted upon the issue of costs. While the appellant was awarded costs of the appeal, it was only entitled to its costs of the proceedings up until the date it agreed to mediate, losing out on the costs of trial preparation and the trial itself.

If you require any further information please contact Tim Hardy at [email protected] or on +44 207 367 2533 or Rachel Hartley at [email protected] or on +44 207 367 2983.

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