The cost of professional discourtesy

The most frequently complained-about breach of etiquette in this age of constant cyber communication is the failure to reply to an email. In the legal world, it is quite common for solicitors to receive an email or letter from the other side without responding, particularly if it contains an offer to settle the dispute, which their client is not going to accept. Two recent Court of Appeal decisions suggest this is a practice that is going to have to change.

The first of these cases is PFG II SA v OMFS Co Ltd. A serious and carefully formulated written invitation by the claimant’s solicitors to participate in mediation was met with complete silence by the defendant. The offer was repeated just over three months later and, despite promising a full response, the defendant’s solicitors never replied to it. 

The Court of Appeal held that a refusal to respond to an invitation to mediate is in itself unreasonable conduct that may merit a costs sanction. It upheld the decision below depriving the defendant of the costs it would have been entitled to under CPR 36.14 during the nine-month delay before its Part 36 offer was accepted by the claimant…

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