The importance of engaging in Alternative Dispute Resolution (ADR) methods whenever possible and the costs consequences of failing to use ADR, even when successful at trial was recently illustrated at a High Court judgment .
The initial case involved a group of protestors who were allegedly hurt by Police officers attempting to stop them storming a council meeting. The claimants alleged assault, battery and false imprisonment, but the Police were successful at trial, proving they were entitled to act as they did due to an imminent breach of the peace .
However, when determining costs, the High Court penalised the defendant for failing to engage in ADR by awarding it only two-thirds of its costs.
The defendant had either chosen not to engage, or, ignored ADR offers at various stages of the proceedings.They had:
- Declined the opportunity to engage in ADR in the allocation questionnaire
- Failed to respond to a formal offer of mediation from the claimant despite an ADR order made by the Court
- Offered to arrange a mediation, but stalled the meeting for over 9 months
- Stated (without any reasoning) that ADR was no longer an appropriate use of resources.
The High Court applied the Halsey principles , as set out below.
It decided that the defendant had failed without adequate (or any genuine) justification to engage in ADR, which had a reasonable prospect of success. The case was suitable for an attempt at mediation as:
- The nature of the dispute meant that there was no on-going commercial relationship between the parties
- ADR could have been an appropriate means of settlement
- There were issues of fact to be determined with a risk of adverse findings against both parties
- The defendant did not have a defence so strong as to justify a refusal to engage in ADR
- Mediation would not have delayed the proceedings
- There were no offers made between parties, so all opportunities to avoid proceedings had not been exhausted
- Any settlement would not have had an impact on police powers or tactics.
The Court dismissed the defendant’s argument that it thought that the claimants would only accept a financial offer which the defendant was unlikely to make, and therefore ADR was not appropriate. It was noted that one side predicting what it might take to reach settlement, does not entitle the other to treat that as a precondition; and that tactical positioning should not be too readily labelled as intransigence.
The defendant’s non-compliance with the protocol on its own may not have resulted in costs sanctions. However, taken with its failure to progress the case, allocate sufficient time and resources and its inattentiveness to the ADR process, this justified a reduction in any award to the defendant.
Putting this case into context
The case reiterates the attitude of the courts to mediation and that ADR methods should be attempted in almost all cases, even if the other side appear inflexible or intransigent. If a party does believe that the facts of the case make it unsuitable for ADR then that party should clearly set out its position in writing rather than simply ignore the other side or delay, simply in the hope that it will proceed to trial.
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 Laporte and another v The Commissioner of Police of the Metropolis  EWHC 371 (QB)
 Laporte v Commissioner of Police of the Metropolis  EWHC 3574 (QB
 Halsey v Milton Keynes General NHS Trust  EWCA Civ 576