ADR: prevaricate at your peril

The case of PGF II SA v OMFS Company Ltd concerned High Court proceedings in which the claimant had made a serious and carefully formulated written invitation to mediate as an alternative to costly litigation. The invitation, even though it was repeated, was met with complete silence by the defendant. Following a last-minute settlement of the claim except as to costs, the court was asked to rule upon costs, taking into account the defendant’s conduct in relation to the proposal to mediate.

The High Court judge ruled that the defendant’s silence amounted to an unreasonable refusal to mediate. On appeal, Lord Justice Briggs took the opportunity to emphasise and endorse the effectiveness of mediation as a form of ADR and to highlight the focus on mediation and ADR generally in post-Jackson civil procedure…

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