ADR Key Cases

Halsey v Milton Keynes General NHS Trust [2004] 3 Costs LR 393

"All members of the legal profession should now routinely consider with their clients whether their disputes are suitable for ADR"

PGF II SA v OMFS [2013] 6 Costs LR 973

"In my judgment, the time has come for this court firmly to endorse the advice given in Chapter 11.56 of the ADR Handbook, that silence in the face of an invitation to participate in ADR is, as a general rule, of itself unreasonable..."

BXB v Watch Tower and Bible Tract Society of Pennsylvania [2020] Costs LR 341

The Defendant failed to follow a court direction to consider ADR at all stages and refused to attend a joint settlement meeting without explaining why. Indemnity costs ordered from 6 months earlier than the last date that Claimant's Part 36 offer could have been accepted.

DSN v Blackpool Football Club [2020] Costs LR 359

Claimant beat his Part 36 offer at trial. Defendant failed to engage in mediation and failed to advance adequate reasons for declining. Award of indemnity costs from one month after the court had given a direction about mediation.

Wales v CBRE Managed Services Ltd [2020] Costs LR 603

Claimant offered to mediate prior to issue of proceedings, and again a month before trial. The Court accepted that mediation would have had a reasonable prospect of success. Defendant's costs reduced to 50%.

Reid v Buckinghamshire Healthcare NHS Trust [2015] EWHC B21 (Costs)

"If the party unwilling to mediate is the losing party, the normal sanction is an order to pay the winner's costs on the indemnity basis, and that means they will have to pay their opponent's costs even if those costs are not proportionate to what was at stake."

Various Claimants v Mirror Group Newspapers (SCCO 4 October 2016)

"It seems to me that there has been a blanket refusal by the defendant to engage in any sort of alternative dispute resolution... The defendants' conduct is unreasonable to a high degree and such to justify an award of costs on the indemnity basis."

Lomax v Lomax [2019] Costs LR 1431

Under CPR 3.1(2)(m) the court can order ENE whether or not the parties agree. The defendant had unreasonably refused to engage in ADR. Indemnity costs ordered from the date of unreasonable refusal, not from the expiry of the Part 36 offer.