The Courts have, for some time now, actively encouraged parties to mediate or, where not possible, show that mediation has seriously been considered, by implementing costs sanctions for those who fail to do so.
The recent Court of Appeal case Thakkar v Patel is a reminder to litigants that the Courts expect parties to be proactive and engage constructively, fully exploring the potential for mediation.
The Court of Appeal dismissed the Defendant’s appeal against a costs sanction awarding the Claimant 75% of his costs of the claim, as the Defendant had agreed to mediate but “dragged his heels” when discussing the arrangements. The Court concluded that had mediation taken place, there would have been “real prospects of settlement”. The Defendant had delayed responding about arrangements for mediation and continually rejected proposed dates with “a variety of excuses” until ultimately the Claimant lost confidence and abandoned the process.
This case confirms that where mediation is appropriate, parties should engage constructively, including proactive cooperation in the arrangement of the mediation, or face the costs consequences.