RED Alert — spring 2014: severe costs consequences for failure to mediate: when silence is not golden
The Court of Appeal recently looked at how the court should deal with a party who fails to respond to an invitation to participate in alternative dispute resolution (ADR).
On the day before the trial of a dilapidations dispute, the claimant accepted a Part 36 offer previously made by the defendant. Under the normal application of Part 36, the claimant should have paid the defendant’s costs incurred from the date on which the Part 36 offer period expired until the date on which it accepted the offer.
However, in this case, the Court of Appeal agreed with the trial judge that the defendant was not entitled to recover these costs because it had ignored previous requests from the claimant to mediate. By applying such a harsh sanction, the court has sent a very clear message about the importance of requests for ADR…
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