 |  |
|
 |
 |
 |
 |
|  | |  | |
Unsurprisingly, the case-law has not been entirely consistent. Thus, while belief in the
strength of one's own case has been held in the abovementioned cases not to justify a
refusal of mediation, the Court of Appeal in McCook v Lobo [2002] EWCA Civ 1760,
19 November 2002, appeared to take a different view. There, the claimant wrote
suggesting mediation to the defendant but received no reply. The Court of Appeal
refused to deprive the defendant of his costs, stating :-
"There were a number of issues before the judge both of fact and of law. The first defendant
had a resounding success before the trial judge. He has also had a resounding success before
this court. That is not to doubt that there were arguable points which have been raised, and
well raised, on behalf of the appellant, but this was not a case, in my judgment, where there
was scope for mediation by way, for example, of a number of areas where costs might at least
have been reduced by discussion, the issues limited, or where there was sufficient room for
manoeuvre to make mediation a venture which might have real prospects of success in
achieving compromise."
It seems, in other words, that the fact that the issues were narrow and that the
defendants had been found to have a strong case leading to "resounding successes"
was thought to justify refusal of mediation - a markedly different approach to that
adopted in some of the other cases.
Notwithstanding inevitable inconsistencies in the case-law, such decisions, applied
bearing in mind any material differences in Hong Kong, would plainly be helpful to
the local courts when dealing with costs arguments based on unreasonable refusal of
mediation.
Notes
At §34.
|
 |
|