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| Failure to mediate : Costs : Multi-party action about land rights related to a housing development : Failure to mediate attributed to all parties : Costs followed the event 70:30 on the facts. CA. 9th October 2002. |
| by Laws LJ; Arden LJ; Crown Copyright |
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Human Rights Art VII : ADR : Applications for JR, following Cowl will only be approved if either alternative processes have been exhausted or a valid reason given for not using them. 16th October 2003
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| by Lord Chief Justice, Master of the Rolls, Auld LJ. Crown Copyright |
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| Insurance : Follow settlement clause : examination of scope of follow on clause : can the court re-examine the settlement to determine whether or not it was an exgratia payment or a genuine settlement : yes - but only with a full trial and discovery - cannot be done on the hoof as a mini-trial : Gavin Kealey QC sitting as a Deputy High Court Judge : 2nd May 2003 |
| by Gavin Kealey QC : Crown Copyright |
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| Nuisance Action between neighbours : Court strongly recommeded mediation to limit costs and aggravation. CA. 7th May 2003. |
| by Ward LJ; Buxton LJ; Mance LJ. Crown Copyright |
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| Without prejudice : Could recollections of things said at without prejudice meetings be used to establish subsequent perjury? Held : The exceptions to the privilege are limited to proof of previous perjury and do not extend to a risk of perjury in the future. CA. 22nd May 2003. |
| by Peter Gibson LJ; Tuckey LJ; Mr Justice Nelson. Crown Copyright |
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| Parties agreed to "best endeavours" to resolve a dispute. Did this impose an obligation to resolve the dispute? Held : no - only to try - failing which the legal rights became enforceable. Deputy Judge H.Ct. 15th December 2003. |
| by Mr Justin Fenwick QC : Crown Copyright |
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| Costs : Indemnity : Part 36 Offer beaten at 1st instance & on appeal : CA : 26th November & 18th December 2003. |
| by Waller LJ, Hale LJ, Carnwath LJ. Crown Copyright |
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| Claim that mediation appointment contrary to terms of contract and the mediation procedure flawed. Court held point 1 a valid issue to be considered by the court. Claimant had to prove his case. But regarding point 2, the court would not scrutinize the mediation process. 22nd October 2003 |
| by Master of the High Court, Ireland. |
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Costs : ADR includes negotiation and mediation : B engaged in mediation but C made strenuous efforts to settle : B who won a minor counterclaim nontheless held liable for costs. 1st July 2003
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| by His Honour Judge Reid Q.C. Crown Copyright |
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| A failure to comply with the protocols had removed the scope for settlement negotiations. Whilst an application for amendment of pleadings was granted the applicant held responsible for majority of costs - by analogy with Leicester Circuits v Coates where mediation unreasonably refused. Part 20 defendant to be put in position he would have been in if protocol followed. TCC 3rd November 2003. |
| by His Honour Judge David Wilcox : Crown Copyright |
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| Having confirmed that a maintenance agreement was a legally enforceable contract, the court advised mediation to determine future mainetnance rates and damages for prior breach - as a preferable option to further litigation. CA. 28th January 2003. |
| by Thorpe LJ; Chadwick LJ; Mr Justice Morland. Crown Copyright |
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| No one involved understood the Harbour Regulations until the H.Ct explained them. Even the S.S. got them wrong. Little wonder then that mediation was refused. Judgement solved nothing but showed way forward. 26th June 2003 |
| by His Honour Judge Lightman. Crown Copyright |
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| Refusal to mediate indicative of losing defendant's intransigence - implications on costs considered. CA. 25th March 2003. |
| by Brooke LJ; Latham LJ; Mr Justice Hart. Crown Copyright |
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Costs : CFA : Privilege : Once the substantive issues are settled there is no longer a justification for asserting privilege in respect of risk assessment documents and allied documents upon which a costs claim are based. Manchester : 23rd January 2003
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| by Harrison District Judge : Crown Copyright |
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| Insurance : ADR settlement and contribution : Impact of arbitration and mediation on right of contribution in insurance dispute. A party that pays under an arbitration award, which the potential contributer is not a party to, is not a volunteer. Contributer declined to mediate. CA. 17th December 2003. |
| by Clarke LJ; Pill LJ; Rix LJ. Crown Copyright |
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| Affirmation of Cowl principles for public disputes and ADR : Commends low cost and no cost mediation. High Court. Admin. 16th April 2003. |
| by His Honour Judge Maurice Kay. Crown Copyright |
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| Failure of mediation - liability : Employment mediation and re-mediation failed primarily because the claimant was unwilling to accept any responsibility for poor relations between her and her boss. In the event the EAT found unfair dismissal but found 90% contributory responsibility. EAT. 31st July 2003. |
| by His Honour Judge Elias. Crown Copyright |
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| Confidentiality : Where an unrepresented party wishes to consult with a McKenzie Man for the purposes of mediation/negotiation, the permission of the court must be sought, since otherwise there will be a breach of Rule 4.23(1) of the Family Proceedings Rules 1991 of publishing protected information where papers concerning the other party are disclosed to the advisor. CA. 28th July 2003. |
| by The President Thorpe LJ : Rix LJ. Crown Copyright |
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| Construction adjudication postponed pending mediation. The mediation failed and the dispute went forward to adjudication. Decision unenforceable - in the circumstances of the case the contractual basis for the decision was absent. TCC. 1st December 2003. |
| by His Honour Judge Richard Seymour Q. C. : Crown Copyright |
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Disclosure : Privilege and Conditional Fee Arangements (CFAs) CA. 22nd May 2003.
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| by Brooke LJ; Hale LJ; Arden LJ; |
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| Failure to mediate : Costs : Leeming, a barrister, refused to mediate a professional negligence claim : Held : entitled to costs. Reputation issue justified a trial : claimant too stubborn for ADR. Ch.Div. 14th March 2003 |
| by Mr Justice Lawrence Collins. Crown Copyright |
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| Costs ?late offer to mediate : Late offer of mediation too late to impact upon right to recover costs, since case was clearly heading for a full trial.16th December 2003 |
| by Deputy Master James : Crown Copyright |
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| If either party requests "that this matter be referred to mediation using this court's Alternative Dispute Resolution Service, then I direct that it shall be referred to mediation; and, if the other party fails to participate without a good reason, that may be a reason why this court will exact a penalty of costs against the recalcitrant party for failing to co-operate and by wasting this court's time." CA. 16th September 2003 |
| by Ward LJ. Crown Copyright |
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| ADR : Settlement agreement : Costs : Settlement figure picked out of the air : It did not reflect potential outcome of trail : Since no clear winner, no order of costs should be made. CA. 9th June 2003. |
| by Schiemann LJ; Buxton LJ; Dyson LJ. Crown Copyright |
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| Settlement Agreement : Minor : Not binding until approved by the court. CA. 6th November 2003. |
| by Simon Brown LJ; Jonathan Parker LJ; Thomas LJ. Crown Copyright |
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| Calderbank offers under CPR 36.3 do not apply to employment tribunals : but whilst there is no automatic cost penalty, the tribunal can under r.14 (Coleman v Seceurop (UK) Ltd (EAT/483/98) and Monaghan v Close Thornton Solicitors (EAT/3/01) consider whether rejection was unreasonable and award costs accordingly. EAT. 11th April 2003. |
| by His Honour Judge Mitting : Crown Copyright |
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| Failure to mediate : Costs : Claimant failed to establish causation and breach of contract : respondent pulled out of mediation : Held : costs related to failure denied. CA. 5th March 2003. |
| by Judge LJ; Longmore LJ;Sir Swinton Thomas. Crown Copyright |
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| The Bank sued surveyor for overvaluation of property: 2 reports addressed to the bank and 1 addressed to the mortgagee. The action was compromised in mediation. This action concerned how much, if any, of the settlement was, by agreement, payable to the mortgagee? Ch.Div. 8th July 2003. |
| by The Honourable Mr Justice Neuberger : Crown Copyright |
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| Wihout Prejudice Correspondence : Pienrcing the Veil : Witness statements as to fact relied upon by an expert witness are not privileged. The statements of fact are a matter that should be disclosed in advance to enable the other party to prepare to challenge the statement. Land Tribunal. 4th February 2003. |
| by P.H.Clarke FRICS. Crown Copyright |
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| Part 36 Offer : Costs : Judgment less than offer : Costs follow event of losing the bidding war : CA. 6th February 2003 |
| by Lord Justices Potter; Chadwick; Tuckey : Crown Copyright |
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| Calderbank Offers & Counter-Offers : Costs : Where both parties have acted reasonably the appropriate order may be that each party bears their own costs in ancilliary relief cases. CA. 28th July 2003 |
| by Lord Justices Thorpe & Mantell. Crown Copyright |
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| Without prejudice offers : Piercing the privilege veil. Lands Tribunal England & Wales. 27th August 2003 |
| by P H Clarke FRICS. Crown Copyright |
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| Reasons for mediation failing : Parties ordered to mediate outstanding issues in an otherwise failed appeal against a possession order on flats. In the event of ADR failing, court to be supplied with an account of the process and why it failed. CA. 22nd January 2003. |
| by Brown LJ Simon; Sedley LJ; Arden LJ. Crown Copyright |
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| Failure to mediate : Costs : a 15% reduction in costs awarded to take account of the conduct of the parties. The fact that the offer was late in the day and the offeror wanted to involve his solicitors did not change matters. 85% costs went to the defendants who had made an offer which mirrored the court's decision on width of access to a field. CA. 8th July 2003. |
| by Peter Gibson LJ; Clarke LJ; Dyson LJ. Crown Copyright |
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| Settlement offer - ?4K plus reasonable costs - insufficiently precise to be taken into account for a costs order. CA. 25th March 2003 |
| by Buxton LJ, Dyson LJ. Crown Copyright |
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| Time bar : Contractual : Voluntary waiver of right to trial. CA. 19th December 2003 |
| by Potter LJ; Laws LJ ; Arden LJ. Crown Copyright |
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| Competing businesses entered negotiations over the use of the word Prudential in China. The applicant sought to establish that the correspondence was privileged. Held : Not part of a settlement of a foreign claim and hence not privileged. None of the correspondence was labelled "without prejudice." CA. 31st July 2003. |
| by Schiemann LJ; Chadwick LJ; Jonathan Parker LJ : Crown Copyright |
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| Property dispute : Water rights : Mediation : An order of the court in respect of quasi-contract set aside because it would establish on-going rights attached to land unrelated to changing circumstances. Parties agreed a 70:30 settlement, accepted by the court and agreed that any future dispute be referred to mediation. CA. 20th March 2003. |
| by L.J. Sedley VC; Kay LJ. Crown Copyright |
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| Public Law : "Mention has been made of the desirability of ADR in this kind of case. From what I have seen about the history of this case, and from what I have observed during the course of this hearing, in my judgment ADR could not have resolved the fundamental difficulties between the parties." High Court - Admin. 22nd August 2003. |
| by Mr Justice Hooper. |
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| Failure to mediate : Costs : Lawful termination of a lease turned on a question of law and interpretation of the terms of the lease : MOD refused costs due to a failure to mediate. Ch.Div. 14th May 2003 |
| by Mr Justice Lewison : Crown Copyright |
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| Without prejudice : Scope of the Unambiguous Impropriety exception considered : Held it is not a flexible concept. An abuse of the privilege must be demonstrated to amount to a cloak for serious wrongdoing. CA. 14th November 2003 |
| by Rix LJ; Carnath LJ. Crown Copyright |
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| Court ordered mediation CPR 1(4) : Dispute over lease and trespass for advertising ? allegations of dishonesty : Respondent applied for court ordered mediation ? application granted. Ch.Div. 5th December 2003 |
| by Mr Justice Blackburne : Crown Copyright |
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Privilege : Application for disclosure of documents refused. CA. 23rd October 2003
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| by Schiemann LJ, Tuckey LJ, Longmore LJ : |
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| Fraudulent Settlement : Mediation settlement allegedly induced by fraud. CA. 3rd July 2003 |
| by Lord Justice Carnwath : Crown Copyright |
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| Speculative litigation challenging probate. Appeal against probate failed. Court regretted that mediation had been refused by beneficiary but in the event the beneficiary became the outright winner - so for him it was a good tactical choice. CA. 10th July 2003 |
| by Thorpe LJ; Mr Justice Jacob. Crown Copyright |
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