It’s ironic that the decision whether or not to mediate can give rise to more litigation, this time over costs where the Claimants resisted the Defendant’s desire, having won, for his costs to be paid on an indemnity basis.
In (1) Jane Laporte (2) Nicholas Christian v Commissioner of Police of the Metropolis EWHC 371 QB, Mr Justice Turner had to balance the fact that the Defendant’s had successfully defended his claim with his lack of engagement with ADR.
Halsey v Milton Keynes General NHS Trust  EWCA Civ 576 continues to be the starting point for those wanting to frame their decision not to engage in ADR. In LaporteTurner J examined the chronology from when ADR was suggested by the Claimants prior to issuing the claim and scrutinised the justifications put forward by the Defendant for there being, in the final analysis, no ADR. The Court found the Defendant’s arguments, applying the non-exhaustive list in Halsey, to be broadly unpersuasive: the nature of the case did not make it unsuitable for mediation; the merits of the case did not go all one way and ‘would have given the Defendant food for thought in predicting his chances of success’; there was a ‘reasonable chance that ADR would have been successful in whole or in part’ and the Defendant was not justified in coming to a ‘contrary conclusion’. He found that the Claimants had pursued the possibility of ADR with ‘appropriate vigour’.
Increasingly the Halsey starting point has to be considered against the backdrop of the strong exhortation in PGF II SA v OMFS Co 1 Ltd  EWCA Civ 128 for parties to be more open mind when it comes to ADR or be prepared not to recover costs even when successful.
On this occasion the Court, exercising its discretion under CPR Part 44, was ‘satisfied that the Defendant’s failure fully and adequately to engage in the ADR process should be reflected in the costs order’ made. Two thirds of the Defendant’s costs were ultimately awarded on the standard basis, not the indemnity basis sought. The question remains how much would the Defendant have saved in terms of resources, time and prioritising of other cases had the opportunity for ADR offered by the Claimants been embraced.