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(c)
A decision along the same lines is Leicester Circuits Limited v Coates Brothers
Plc
[2003] EWCA Civ 333, 5 March 2003. Just as the parties were about to
embark upon a mediation, the defendants withdrew, having been required to do
so by their insurers. Although they won the case, their withdrawal was treated
as unexplained and they were deprived of part of their costs. Judge LJ
summarised what appears increasingly to be the general approach of the English
courts as follows :-
"We do not for one moment assume that the mediation process would have succeeded, but
certainly there is a prospect that it would have done if it had been allowed to proceed. That
therefore bears on the issue of costs."
(d)
In Royal Bank of Canada Trust Corporation Ltd v Secretary of
State for
Defence,
a case turning on the construction of a clause in a commercial lease,
the court took notice of the government's pledge to use ADR in all suitable
cases wherever the other party accepts it and rejected as unreasonable the
defendant's explanation that, notwithstanding such pledge, it had rejected
mediation because the case merely involved a dispute on a point of law.
Lewison J deprived the defendant of its costs, holding that the dispute was
suitable for ADR "even though the main issue was technically one of
law ......"
Notes
At §27.
[2003] All ER (D) 171 (14 May 2003).
Jane Turley, The shape of things to come (June 2003): www.cedr.co.uk.
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