Catriona Stewart discusses the possible cost consequences of delayed or abandoned mediation attempts
Can a party avoid a costs sanction if they choose not to mediate? The recent case of Car Giant Limited and Anor v London Borough of Hammersmith [2017] EWHC 464 (TCC), [2017] All ER (D) 104 (Mar) would indicate possibly, but only if based on well-thought grounds which are communicated to the other party.
Costs judgment
Car Giant concerned a costs judgment where the claimants had failed to beat a Pt 36 offer. The court was asked to award costs both before and after the expiry of the relevant period on an indemnity basis. The argument in support of the later period was that there had been an unreasonable delay in agreeing to mediate. The delay was from 15 May 2015 until October 2016. The court considered that it should be slow to criticise a party’s behaviour where decisions such as when to mediate are matters of tactical importance where different views may be legitimately held.
