{"id":1569,"date":"2018-05-31T11:27:31","date_gmt":"2018-05-31T10:27:31","guid":{"rendered":"https:\/\/gardencourtmediation.co.uk\/?p=1569"},"modified":"2018-06-01T12:08:37","modified_gmt":"2018-06-01T11:08:37","slug":"agreeing-to-mediate-better-late-than-never","status":"publish","type":"post","link":"https:\/\/gardencourtmediation.co.uk\/agreeing-to-mediate-better-late-than-never\/","title":{"rendered":"AGREEING TO MEDIATE \u2013 BETTER LATE THAN NEVER"},"content":{"rendered":"

Background<\/em><\/p>\n

The latest twist in the issue of cost consequences for a party which has refused a proposal to mediate a dispute has been played out in a specific ruling on costs by Mr Justice Arnold in Shakir Ali and Anr v Channel 5 Broadcast Ltd [2018] EWHC 840<\/em> on 28th\u00a0April 2018. Earlier (22nd<\/sup> Feb 2018) the judge had ruled against Channel 5 in the claim brought against it by Mr and Mrs Ali for breach of Article 8 ECHR (right to respect for private and family life and the home) arising out of the filming of their eviction from property they had been renting from a private landlord, following the making of a possession order, sought after rent arrears had arisen, by High Court Enforcement Officers. The film was shown on television as part of the series \u201cCan\u2019t Pay, We\u2019ll Take it Away\u201d.<\/p>\n

The judge found that the manner in which the filming had been carried out did amount to a breach of privacy, not outweighed by Channel 5\u2019s Article 10 rights (freedom of expression) and awarded the claimants 10,000 pounds damages each.<\/p>\n

 <\/p>\n

The costs arguments<\/em><\/p>\n

Three issues arose related to whether the Claimants were entitled to recover the whole of their (assessed) costs. The first was on the basis that the claimants\u2019 solicitors had (allegedly) refused an offer of mediation, although a mediation eventually took place, but was unsuccessful.<\/p>\n

 <\/p>\n

Was there a refusal to mediate?<\/em>\u00a0<\/em><\/p>\n

The defendant\u2019s solicitors first raised mediation in a letter dated 29th<\/sup> Feb 2016 (letter before claim 17th<\/sup> Feb 2016) stating that Channel 5 was prepared to enter into an ADR procedure \u201cshould that appear advantageous\u201d. To that the claimants\u2019 solicitors replied (10th<\/sup> June 2016) that as \u201cfundamental issues of law and regulation [are] in dispute, we do not consider ADR would be productive or appropriate\u2026but our clients will be prepared to keep under review the option of ADR\u201d.<\/p>\n

At that stage the claimants were seeking an injunction (not to repeat the programme) and Channel 5 replied (14th<\/sup> June) that that part of the claim was \u201cperfectly suitable for ADR\u201d. On 30th<\/sup> June the claim form was issued and shortly after the programme was repeated. The claimants wrote on 3rd<\/sup> August restating \u201cthese circumstances do not appear conducive to ADR\u2026However we remain fully prepared to engage with ADR at a suitable time and invite proposals\u201d.<\/p>\n

By December 2017 virtually all preliminary stages to trial had been completed and Channel 5 had offered an undertaking not to broadcast any footage showing the claimants\u2019 eviction in future. The offer of mediation was repeated, the point being made that the claimants concern seemed to be not about money but a public apology. This time the claimants\u2019 solicitor agreed (letter dated 1st<\/sup> December 2017).<\/p>\n

 <\/p>\n

The judge\u2019s ruling<\/em><\/p>\n

The judge decided that the claimants had not refused to engage in ADR and so were entitled to their costs for the relevant period. His reasons were:-<\/p>\n