The Hurst v Leeming case 2002
N.B. The most recent guidelines on ADR and the courts can be found in The Halsey Case 2004 (May 2004).
The case on this page has been included as it has contributed significantly to the development of case law on ADR, but it is no longer definitive.
This means that The Halsey Case 2004 should be read before making a decision about whether ADR should be tried before going any further with the court process.
The issue
Reasons for refusing to use ADR must be justifiable in order to avoid a potential costs penalty.
The background
This case was heard in the Chancery Division of the High Court. It concerned a claimant who was suing a barrister for professional negligence, following a number of failed attempts to sue the solicitors who had advised him, and who had originally instructed the barrister. The judge, Mr Justice Lightman, had a “frank exchange of views” with the claimant about the merits of the case, and told him bluntly that the action had no merit and must be dismissed. When the issues of costs was being considered, the claimant suggested that as he had proposed mediation, and the defendant had turned it down, no costs should be awarded against him.
In the case of Dunnett v Railtrack, Railtrack won their case at appeal on legal grounds, but were not awarded costs because they “flatly refused” to consider mediation, despite the recommendation of the judge. See The Dunnet v Railtrack case 2002.
The decision
In this case, the judge decided that the defendant was justified in refusing mediation, even though the professional negligence pre-action protocol encourages both sides to consider it, and requires parties refusing to mediate to state their reasons. A number of reasons for refusing mediation were put forward by the defendant, and some of them were rejected by the judge. For example, he said that:
- The fact that heavy costs had already been incurred was not a justification for refusing mediation, though it was a factor to take into account
- The fact that a party believes they have a watertight case is not a justification for refusing mediation (as in Dunnett v Railtrack)
- The critical factor was whether, objectively viewed, mediation had any realistic prospect of success
In this specific case it was appropriate to take into account the state of mind of the claimant who was, in the view of the judge, “obsessed” and “disturbed” and incapable of a balanced evaluation of the facts. The defendant was justified in believing that by reason of the character and attitude of the claimant, mediation had no real prospect of getting anywhere.
It is important to note that the judge went on to say “that is not a view which is easily sustainable in any case”, and that it was the specific facts of this case which meant that costs penalties for the defendant who refused mediation were not appropriate. Mr Justice Lightman referred to both Cowl v Plymouth and Dunnett v Railtrack in his judgement, as setting a precedent that parties should consider mediation, and that those who refuse mediation without good and sufficient reasons may be penalised. He went on to make it clear that although mediation isn’t legally compulsory, courts are increasingly expecting people to at least give it a try where it might be appropriate.
He said:
“Mediation is not in law compulsory, but alternative dispute resolution is at the heart of today’s civil justice system, and any unjustified failure to give proper attention to the opportunities afforded by mediation, and in particular in any case where mediation affords a realistic prospect of resolution of dispute, there must be anticipated as a real possibility that adverse consequences may be attracted.”
Note for advisers
In the light of this case, and the two cases referred to in the course of this judgement, it is vital that legal advisers encourage clients to consider ADR before proceeding with court action, and indeed at any stage during the court proceedings when it is suggested either by the other party, or by the judge. Mediation, or another form of dispute resolution may or may not be appropriate, depending on the circumstances of the case and the attitude of the parties. It is clear that judges will accept valid reasons for not wanting to proceed with ADR, but that these reasons must be fully justifiable if the party wishes to avoid a potential cost penalty. Legal advisers should also ensure that the process of discussing the option of ADR, the decision taken about whether to proceed, and the reasons if refusing, should all be clearly recorded on the case file, in order to protect both the client and themselves if it becomes an issue at a later stage of the proceedings.
Hurst v Leeming [2001] EWCH 1051 Ch
