[2016] EWHC 2741

This was the hearing of an appeal about certain discrete costs issues arising out of claims made by some 205 Claimants who all fell sick on a cruise-liner holiday. One of the challenges made by the Defendant related to the fact that it was an ABTA bonded company. The Defendant claimed that some of the Claimants could have used the ABTA mediation process instead of the courts. The Claimants’ response was that the Defendant had never invited the Claimants to do this. Further, the fact that the Defendant had denied liability throughout showed that mediation would have failed, and more costs would have been incurred. On top of this, the Claimants had offered to mediate in a letter, a letter to which there had been no response. Having reviewed a sample contract, Mrs Justice Laing DBE noted that the contract did not impose an obligation to use the ABTA scheme. It left it up to the passenger to decide whether to use the scheme or to litigate in court. The Judge concluded that:

“…if a Defendant wishes to rely, at the stage of a detailed assessment, on the availability of an industry-specific ADR scheme, which is referred to in the relevant contract, but it is not binding, and is not expressed to oust the jurisdiction of the courts, the Defendant must make that clear in its pre-action protocol response. The Defendant did not do so here. The Defendant did not admit liability. The claims were robustly contested. Moreover, the Defendant did not respond to the Claimants’ offer of ADR. Had the Master concluded in this case that the Claimants should get no costs, or only recover the costs of using the ABTA scheme, such a conclusion, on these facts, would have been plainly wrong.”