Mediation

The costs sanction

In the recent decisions of Halsey v Milton Keynes General NHS Trust; Steel v Joy and Halliday [2004] EWCA Civ 576 the Court of Appeal has taken the opportunity to consider (and hopefully clarify) the question of when it is right for the court to impose costs sanctions against a successful litigant on the ground that he has refused to take part in alternative dispute resolution (ADR). Although not of direct relevance to arbitration, the day is surely not far away when a losing party seeks to avoid or reduce a costs liability in an arbitration by reference to facts showing that the winning party unreasonably refused to participate in a mediation or alternative ADR form to resolve the dispute. The case is discussed by Louis Flannery of Howes Percival.