FAILURE TO MEDIATE AND THE RECOVERY OF COSTS

Nigel Witham Ltd v Smith and Isaacs [2008] EWHC 12, 4 January 2008

In Nigel Witham Ltd v Smith and Isaacs [2008] EWHC 12, 4 January 2008, Judge Coulson QC held that the defendants, as the successful party to the litigation, were entitled to recover their costs from the claimant, subject to a reduction of 15% in respect of a counterclaim which the defendants had abandoned. He rejected the submission that there should be a percentage reduction to reflect the defendants’ refusal to mediate. He held that the defendants had not in fact refused to mediate and that, even if they had agreed to an early mediation, he was not persuaded that it would have led to a settlement.