Corby Group Litigation v Corby District Council [2009] EWHC 2109

You may remember the publicity given to the decision of Mr Justice Akenhead in this case when he found that the Council’s control and management of steel work sites had been de! cient leading to birth defects in local children. The same Judge has recently handed down a decision in relation to the costs of that case. One of the issues he had to consider was whether the Council should be liable to pay costs on an indemnity basis on the grounds that it unreasonably turned down a request for ADR. The Judge formed the clear view that the Council had not acted unreasonably. He did so by considering the time in which the request was made. The ! rst time the possibility of mediation was being discussed, the Council’s solicitors suggested with, in the view of the Judge, “some justi! cation” that it would be better to defer any decision on this point until the exchange of expert evidence. Once expert evidence had been exchanged, the Council’s team declined mediation because in their view it was “highly unlikely to be productive in reaching a conclusion” given the lack of common ground between the parties. In the view of Mr Justice Akenhead, given the nature of the claimants’ expert evidence at the time, he did not consider that that position was unreasonable. He noted that:

Hindsight shows that CBC [the council] was wrong but one must judge the decision to refuse ADR at the time that it was under consideration. CBC had expert evidence which supported its stance on every material aspect of the Group Litigation issues and the Claimants were adopting what I have described as a “scatter gun approach”. It was not unreasonable to form the view that mediation would not have produced a settlement”.

Indeed, the Judge went on to consider the consider so called “scatter gun” approach of the claimants (and by this he meant they did not seek properly to analyse what breaches of duty occurred on what projects and contracts and how such projects led to the dispersal of mud and dust and thus contaminants) but also the fact that there had been time wasted at trial because the claimants did not have enough witnesses available on a day to day basis to enable full days hearing to take place. A calculation was carried out as to the amount of time that was lost amounting to some two days. As a consequence of these two factors, the Judge formed the view as a reduction of the claimants’ costs of 10% would be an adequate and fair reflection.