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| Family mediation - case demonstrates the importance of specialist mediators - where commercial mediators failed, experienced family mediators guided parties to a settlement. 5th October 2004. |
| by Thorpe LJ; Mr Justice Wall. Crown Copyright |
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| Failed action to establish a Right of Way. Defendant refused mediation. Impact on costs? Held : perfectly reasonable to refuse to mediate : nothing to compromise. Such cases are not suitable for mediation. Costs followed event. High Court : 20th May 2004 |
| by Deputy Judge Bernard Livesey QC : Crown Copyright |
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| Discovery & mediation : Court can order ordinary disclosure of non-privileged documents to facilitate Part 36 CPR Offer or Mediation. Chancery Division, Companies Court : 25th May 2004 |
| by Mr Justice Blackburne : Crown Copyright |
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| Graduated Dispute Resolution Procedure from internal review, via mediation to arbitration in contract of employment. Court stayed action pending exhaustion of ADR procedures. Ch.Div. 22nd July 2004 |
| by Mr Justice Lightman : Crown Copyright |
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| Insurance : Liability of underwriter under settlement agreement - "follow the settlements clause" : Held : Liability not automatic - underwriter entitled to challenge the scope of the "follow on" clause : But assured does not have to prove he would have been legally liable for the full amount agreed in the settlement. CA. 6th April 2004 |
| by Peter Gibson LJ, Tuckey LJ, Nourse LJ. Crown Copyright |
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| Bias : Misconduct : Privilege : Mediator acted in a clearly uneven handed manner. Family Division. 26th August 2004. |
| by The Honoourable Mrs Justice Baron D.B.E.. Crown Copyright |
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| Walford v Miles restated : there is no duty under English Law to negotiate in good faith to conclude a contract. Commercial Div. High Court. 11th May 2004. |
| by His Honour Judge Cooke : Crown Copyright |
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| Share contract contained a mediation clause, allowing 90 day procedure, failure giving rise to a right to litigate. Held, no right to litigate until mediation attempted. Chancery Div. 3rd February 2004 |
| by His Honour Judge Peter Smith : Crown Copyright |
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| Costs : Payment In & refusal to mediate. Attitude of party proposing mediation was inconsistent. Claimant accepted an uplifted payment in. Defendant sought a reduction in costs for alleged failure to mediate. Held : there had been no serious engagement in mediation by the defendant. The claimant was the clear winner and thus entitled to recover litigation costs. High Court. 28th October 2004 |
| by Mr Leslie Kosmin QC Deputy Judge : Crown Copyright |
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| EAT sex discrimination action : Tribunal advised preferably ACAS conciliation or mediation. Sums involved small, event occurred a long time ago and had serious implications for the Legal Aid Board. EAT. 22nd September 2004. |
| by His Honur Judge McMullen QC, Crown Copyright |
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Confidentiality : Nominet arbitration : Correspondence related to a failed informal mediation submitted to the arbiter must be ignored and are non-admissible. DRS. 19th February 2004
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| by Bob Elliott : Crown Copyright |
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| Refusal to mediate. A failure or refusal to mediate can have no implication in respect of legal liability under the law ? a fortiori there were complicated issues that required a trial. First Division, Inner House Court of Session. 21st May 2004. |
| by Lord President; Lord Penrose; Lord Clarke. Crown Copyright |
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| Contact Mediation : outlines the latest developments in the settlement of offspring contact issues between separated parents. Family Division. 1st April 2004. |
| by Mr Justice Munby : Crown Copyright |
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| Agreement to refer commercial dispute to ACAS as per ADR provision in contract ? attempt failed - ACAS does not deal with private commercial cases. Attempt to arbitrate ? failed. Not an arbitration agreement. QBD. (Comm). 13th February 2004. |
| by His Honour Mr Justice Cresswell : Crown Copyright. |
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| Work place mediator resigned from his role asserting lack of expertise. This caused such distrust that the claimant resigned claiming unfair dismissal. Claim failed. Demonstrates the importance of appointing the right person first time around since resignation may be interpreted as meaning mediator has been "got to" by the other side. EAT. 11th June 2004. |
| by His Honour Judge Reid QC ; Crown Copyright |
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Application for costs : Mediation discussed and implication of Halsey. CPR 44 applied. Deviation from costs follow event - ?20k deducted. Ch.Div. 19th August 2004.
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| by Deputy Judge Mr Nicholas Davidson QC : Crown Copyright |
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| Family mediation costs : Court told parents they needed mediation for the benefit of the child and held that this was a cost that could be funded out of the child's trust fund, as something for his benefit. Family Division. 14th May 2004. |
| by The Honourable Mrs Justice Baron : Crown Copyright. |
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| Court advised mediation : costs : CA sets out role of court in advising mediation : and the grounds upon which costs may be ordered by a party who fails to mediate. 11th May 2004. |
| by Lord Justices Ward, Laws, Dyson : Crown Copyright |
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Costs : Failed mediation. 11th October 2004.
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| by Costs Judge, Master Wright. Crown Copyright |
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| Failure to negotiate : Costs. Co-defendants : One prepared to settle - other not - Part 36 offer to settle by claimant rejected but subsequently beaten. Liability apportioned 66.6/33.3. 2nd defendant went into liquidation. 1st defendant liable for entire sum. Enhanced interest on costs and costs on an indemnity basis. 16th July & 10th November 2004 |
| by His Honour Judge Roderick Evans : Crown Copyright |
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| Shariah Court Mediation : Conciliation / mediation role of Shariah Court outlined : The culture and legal system of overseas citizens should be respected even if the approach to rights differs from that in the UK. CA. 2nd April 2004. |
| by Mr Justice Gage, Thorpe LJ; Wall LJ. Crown Copyright |
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| Offers to settle by an insurance carrier, even if not stated to be without prejudice, do not amount to an admission of liability and are not admissible as evidence at trial. QBD. 27th February 2004 |
| by Mrs Justice Cox : Crown Copyright |
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| Court Mediation Scheme Application for disclosure granted. Court commended the mediation scheme and gave strong warnings on costs for a failure to avail themselves of the service. CA. 15th June 2004. |
| by Sedley LJ; Neuberger LJ. Crown Copyright |
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| Insurance : Settlement agreement : In order to establish a right to recover liabilities incurred under a settlement agreement, assured must establish a loss covered by the policy. Commercial Court. 5th October 2004 |
| by His Honour Judge Colman. Crown Copyright |
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| Breach of confidentiality. Mediator disclosed confidential information received during mediation to third parties. Whether public interest policy overrode duty of confidentiality. Scope of negotiation privilege examined. QBD. 2nd July 2004. |
| by His Honour Judge Gray. Crown Copyright |
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| Successful appellants awarded costs up to the date they refused to take part in court advised mediation and because the central issue had been conceded by the respondents prior to the appeal. CA. 28th June 2004. |
| by Peter Gibson LJ; Waller LJ; May LJ. Crown Copyright |
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| Recovery of costs : applicant sought to recover costs of a failed attempt to claim damages for alleged breach of right to buy : the claimant had recovered sums in a mediation for failure to repair and applicant sought to tap into this sum of money. 9th September 2004. |
| by Master Gordon Saker : Crown Copyright |
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| Failure to mediate : Costs : CA held first that an advance on wages is not a credit agreement that has to be in statutory form. Therefore a junior solicitor who received advance wages in excess of earnings had to repay the excess to the law firm on her departure. Appeal allowed. At 1st instance mediation was advised. Both parties contributed equally to the failure so court ordered each party to bear their own costs. CA. 17th March 2004 |
| by Lord Justice Ward : Crown Copyright |
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| Claimant withdrew a wrongful dismissal claim because of a medical condition "exacerbated by stress induced by the other parties refusal to mediate." The EAT awarded costs of action against the claimant. He appealed. Held, the withdrawal was unreasonable and costs post withdrawal awarded, but no costs for the initial action which was a potentially viable suit. CA. 13th May 2004. |
| by Thorpe LJ; Mummery LJ; Mr Justice Bennett. Crown Copyright |
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| Costs of a previous hearing. Held : costs split 50/50 between the parties to reflect unreasonable conduct on both sides, including the obstruction to implementation of a mediation agreement and an uncooperative attitude towards refinancing on the other. Ch.Div. 16th February 2004 |
| by Blackburne J. Crown Copyright |
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| Mediation Advised : Valuation dispute regarding mortgagees disposal of property, and particularly the value of a lavender crop. One party ordered to pay costs of hearing, to be discounted from any damages subsequently recovered - but with strong advice to mediate- costs already being disproportionate. CA. 22nd March 2004. |
| by Auld LJ; Baker LJ Scott; Jonathon Parker LJ : Crown Copyright |
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| Public Law : DEFRA mediation ? application for stay : Stay refused ? mediation applied for late in the day : Court went ahead and heard the matter. High Court Admin.Div. 23rd March 2004. |
| by Mr Justice Keith : Crown Copyright |
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| Failed Mediation Costs Claim prevailed, exceeding a Part 36 offer, which followed a failed mediation : Held : Claimant had done all required in terms of settlement to be entitled to costs and interest. Comm Div. QBD. 8th July 2004. |
| by Mr Justice Langley. Crown Copyright |
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| The court has no power to impose mediation on the parties but the trial judge might well consider whether pending applications should be given time in the court calendar, and particularly whether they should be given priority in the court calendar unless the parties have first availed themselves of the invitation to mediate. CA. 29th July 2004. |
| by Thorpe LJ; Waller LJ; Lady Justice Arden. Crown Copyright |
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| Cost penalty imposed for unreasonable rejection of payment in. IP dispute - both parties entitled to use a disputed name. Ch.Div.(Patents Court). 12th August 2004 |
| by David Young QC. Sitting as Deputy Judge : Crown Copyright |
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| Litigation v Mediation : Neighbour dispute - access: Following two failed mediations, the court acknowledged that the time for negotiation had passed and the only way to end the dispute was through litigation. Ch.Div. 7th October 2004. |
| by The Honourable Mr Justice Patten. Crown Copyright |
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| Settlement offer : Costs. Provided an offer to settle was in clear terms equivalent to a payment in it would be treated as such for the purpose of assessent of costs. CA. 15th October 2004. |
| by Waller LJ, Mance LJ, Staughton. Sir Christopher : Crown Copyright |
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| Challenge to a will and subsequent appeal involving allegations of fraud by an executor. Court of Appeal clarified that the Halsey Case is not authority for the unsuitability of mediation where fraud is alleged and recommended mediation even at this late stage, with a warning on costs for a failure to do so. CA. 27th May 2004. |
| by Ward LJ; Waller LJ; Hale LJ. Crown Copyright |
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| Attempt to recover sums paid out in a mediation settlement from underwriters. CA. 28th January 2004. |
| by Potter LJ, Jonathan Parker LJ Mr Justice Charles : Crown Copyright |
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| Court declined to order mediation because mediation can be expensive and one party was of limited financial means. CA. 30th April 2004. |
| by Mance LJ; Jacob LJ. Crown Copyright |
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| Defendant twice rejected overtures to mediate. Following Halsey, the court declined order costs against defendant. Large distance between the parties positions; novel issues needed a judicial decision so prospects poor. CA. 14th July 2004 |
| by Lord Justice Jacob : Crown Copyright |
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| Cultural Impact : Family mediation : CAFCASS officer and mediator drawn from the Muslim community recommended to try and build bridges between a husband and wife to facilitate access to offspring. CA. 1st December 2004. |
| by Arden LJ; Neuberger LJ; Thorpe LJ. Crown Copyright |
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| The label "without prejudice" without more was insufficient to ensure protection. In the circumstances there was a clear intention to negotiate that would be appreciated by the objective reciever so document protected. Ch.Div. 10th November 2004. |
| by Mr Justice Laddie. Crown Copyright |
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| Court mediation ? application for stay : During application for appeal mediation had been agreed but had not been possible within the time frame. One party requested an adjournment of the appeal hearing to carry out the mediation : Court declined, heard the case and dismissed the appeal. CA. 14th May 2004. |
| by Peter Gibson LJ; Rix LJ; Longmore LJ. Crown Copyright |
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| Without prejudice : Claimant disclosed existence of but not details of a rejected without prejudice offer to an adjudicator : Held ? knowledge alone of existence of offers does not result in bias. 27th February 2004. |
| by His Honour Judge S.P.Grenfell. Crown Copyright |
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| Legal Privilege : Advice by lawyers on presentation at a Legal Inquiry is not protected by legal privilege. Problem - how to separate legal advice from presentational advice? CA. 1st March 2004. |
| by Lord Phillips, Longmore LJ; Thomas LJ. Crown Copyright |
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| Stay pending mediation and interim costs order : Interim decision : Costs reserved pending the outcome of mediation when immediately prior to trial claimant eventually acceded to mediation ? since there was still a possibility that the claimant was entitled to his asserted right to a transfer of title in to a trade name. Ch.Div. 15th June 2004. |
| by His Honour Judge Pumfrey. Crown Copyright |
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| Negotiations : Appeal : Duty to Court. Where an appeal is pending the parties have a duty to notify the court if settlement negotiations are taking place. The hearing can be postponed pending the outcome since it can lead to savings in judicial time and effort. CA. 2nd February 2004 |
| by Peter Gibson LJ; Laws LJ; Longmore LJ. Crown Copyright |
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| Claimant successful on 1 of 4 points of claim. Court ordered closts on global basis as opposed to on a claim by claim basis. Defendant had refused to mediate. Court considered there was a reasonable chance of success and upped costs awarded from 50:50 to 65:35. QBD. 30th June 2004. |
| by His Honour Judge Langan QC. : Crown Copyright |
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