The move towards using mediation as a form of alternative dispute resolution has accelerated in recent years.
The Court of Appeal has recently issued a stark warning to landlords that compliance with the consultation requirements prescribed by section 20 of the Landlord and Tenant Act 1985 (“s.20”) is vital in order to recover the costs of major works.
The Alberta Court of Appeal addressed the effect of without prejudice offers in Mahe v. Boulianne.
A landlord must bear the costs of almost £270,000 for repairs to a block of flats after failing to recover these from the tenants due to non compliance with the statutory requirements to consult the tenants over the proposed costs.
Courts in Guernsey and elsewhere are increasingly adopting a stricter approach in relation to the costs of litigation.
Without prejudice offers may help parties to save time and costs in settling disputes.
In Aon Risk Services Australia Limited v Australian National University 2009 HCA 27 (Aon v ANU), the High Court has unanimously upheld the importance of the objective of the ‘just, quick and cheap resolution of the real issues between the parties’ (as these objectives are variously enshrined in Court Rules) in determining applications for leave to amend pleadings.
Although litigation should always be conducted in a cost-effective manner, in periods of economic downturn this becomes increasingly more important.
The English Court of Appeal decision in Framlington Group Ltd v Barnetson 2007 makes it clear that, in order to exclude evidence of pre-litigation disputes under the without-prejudice rule (the Rule), one needs to look at the proximity between the issues at the heart of the settlement negotiations and the subject matter of the actual or threatened litigation.