In the 2014 High Court decision of Phillip Garritt-Critchley & Others v Andrew Ronnan and Solarpower PV Limited, HHJ Waksman QC awarded indemnity costs to the Claimants after deciding that the Defendants' refusals to mediate were unreasonable.

Pannone represented the Claimants and have recently published a summary.  The Claimants had offered ADR both pre-issue and after proceedings were issued.  Furthermore, at the Case Management Conference in May 2013, District Judge Khan recommended that the parties try to resolve their differences via mediation.  However the Defendants refused to engage in mediation.

The trial took place in January 2014 and judgment was reserved.  During the 2 week period between the conclusion of the trial and the scheduled delivery of the reserved judgment, the Defendants changed their mind and sought the Claimants' permission to accept a part 36 offer.  The Claimants agreed and were therefore entitled to be paid costs on the standard basis.

The Claimants argued for indemnity costs and the costs hearing took place on 4th February 2014.  HHJ Waksman QC disagreed with the Defendants' arguments for refusing to take part in ADR.  The Defendants had argued that there was no middle ground between the parties, that the parties disliked and distrusted each other, and that both sides were too far apart for a settlement to be reached.  The Judge considered the 2004 Court of Appeal case of Halsey v Milton Keynes General NHS Trust.

HHJ Waksman QC also distinguished the facts of the case from the recent Court of Appeal case of PGF II SA v OMFS Company 1 Ltd [2013] EWCA Civ 1288.  Although the Defendants had not simply ignored the other side's request to mediate (unlike in PGF II SA) they had decided not to mediate for misconceived reasons.

The decision highlights the Courts support for mediation and demonstrates once again that parties (along with their solicitors and barristers) need to carefully consider the possible ramifications of a refusal to engage in mediation of other ADR.