Hitting parties where it hurts is the quickest way to make them sit up and take notice. Winning a case is not so sweet when the courts don’t let you have your costs for remaining silent.
It is common knowledge that you have a right to remain silent in criminal law. The Court of Appeal seems to have swept this away in the context of civil proceedings following a recent Court of Appeal decision*.
For the past 10 years, it has been law that unreasonably refusing to agree to mediation or settlement by the Court’s negotiations (commonly known as ADR – alternative dispute resolution) could deprive a party of all or part of its costs when bringing a successful claim (following the Halsey case**). The Court of Appeal has now extended this to include silence in the face of an invitation to participate in ADR.
The ‘overriding objective’ of the Civil Procedure Rules (CPR) is to enable the Court to deal with cases justly and at a proportionate cost. The CPR reminds parties to continue to consider the possibility of reaching a settlement ‘at all times’ even after proceedings have commenced, right up to any final hearing or trial.
If you receive an invitation to participate in ADR, you must engage with the invitation, even if you do not want to participate in ADR for valid reasons. By explaining your reasonable objections to the invitation (such as an alternative form of ADR being more suitable or the costs of a mediation being too expensive in your case) you should avoid the stance taken on costs.
This decision can also be particularly useful to you when dealing with difficult opponents who are adamant to ‘have their day in Court’. Being hit where it hurts the most (in the pocket) will surely make them think twice and could help in bringing a speedy conclusion to a matter which would otherwise have to be dragged out. It may also mean you avoid incurring disproportionate litigation costs in taking the matter all the way to trial.
For more information, email firstname.lastname@example.org.
*PGF 11 SA v OMFS Company 1 Ltd  EWCA Civ 1288
**Halsey v Milton Keynes General NHS Trust  1 WLR 3002