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Some help is presently available from case-law developments in England and Wales
where, in the absence of written rules, the courts have been handing down decisions
which illustrate when rejection of mediation may be regarded as unreasonable in
relation to cases where there has been an outright refusal to participate.
(a)
Thus, in Dunnett v Railtrack plc [2002] 1 WLR 2434, the defendant had offered
the claimant £2,500 to settle her claim and then succeeded in having both her
claim and her appeal dismissed. However, while the appeal was pending, a
single judge of the Court of Appeal had suggested that the parties should
attempt ADR, a suggestion which the claimant accepted but which the
defendant rejected on the ground that it was not willing to offer more than had
already been rejected by the claimant. Notwithstanding the defendant's offer
and success in the proceedings, it was deprived of its costs of the appeal
because of its "refusal ...... to contemplate alternative dispute resolution at a
stage before the costs of this appeal started to flow."
(b)
In Hurst v Leeming [2003] 1 Lloyd's Rep 379, defendants who had successfully
defended at trial had also refused mediation requested by the claimant before
trial. The defendants argued that such refusal was reasonable, because (i) heavy
costs had already been incurred by the time mediation was offered; (ii)
allegations of professional negligence had been made against them as solicitors;
(iii) they believed that they had a watertight case; and (iv) they had provided a
detailed refutation of the claimant's case. While Lightman J considered some
of these to be important discretionary factors, he did not think that these reasons
singly or cumulatively justified the defendants' refusal of mediation. They were
only saved from being deprived of their costs by the peculiar facts (namely, that
the defendant had previously started several vexatious actions in the same
context), which persuaded the court that there were no reasonable prospects of a
successful mediation.
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