The recent case of Stoney-Andersen v Abbas and others [2023] is yet another and very striking example of the court’s willingness to penalise a party for refusing to engage in mediation.
In his judgment, the trial judge, Judge Matthews, specifically referred to the Court of Appeal decision in Thakkar v Patel [2017] where Jackson LJ said:
“The message which this court sent out in PGF II v OMFS Ltd was that to remain silent in the face of an offer to mediate is, absent exceptional circumstances, unreasonable conduct meriting a costs sanction, even in cases where mediation is unlikely to succeed. The message which the court sends out in this case is that in a case where bilateral negotiations fail but mediation is obviously appropriate, it behoves both parties to get on with it. If one party frustrates the process by delaying and dragging its feet for no good reason, that will merit a costs sanction.”
The trial judge went to on say,
“I am satisfied that the first and second defendants were right to pursue the possibility of mediation, and that the claimant was wrong, no matter how much she was being told that she would be likely to win, to ignore it. It is a commonplace that both sides are told by their lawyers that they will win. But they cannot both be right. Indeed, sometimes, both sides are wrong. The combination of litigation risk and irrecoverable costs almost always makes it worthwhile considering mediation and other ADR.”
The trial judge showed the courts disapproval by awarding the claimant only 50% of her costs even though she won the case in court.
The case is an interesting one in that the actions of the executor, the first defendant in the case are also considered in light of the express provisions in the Will which gave the executor an indemnity to cover legal costs incurred by him in prosecuting or defending legal proceedings and also the costs of any third party which the executor is ordered to pay by a court. The court held that in resisting the actions of the claimant to remove him as the executor, the executor’s actions amounted to misconduct and whilst this did not necessarily mean he had acted in bad faith, he should have known that given the state of the family’s affairs and the allegations being made against him, it was not tenable for him to remain as the executor so he should have resigned. As a result of his actions, the court held that the executor was personally liable to pay a proportion of the claimant’s costs and also his own costs. The executor was only able to rely on the indemnity in the Will for costs incurred in relation to issues surrounding the amendment of the Will but those costs were only nominal.
This case emphases the importance of mediation in civil disputes not simply in probate disputes. However, strong your case is, you should try and resolve your dispute through alternative dispute resolution (ADR) including if necessary, mediation.
You may feel that your case is cast iron and you are confident you will win in a court of law, but this case demonstrates that you must still seek to settle the dispute through ADR and where bilateral negotiations fail mediation must be properly used by the parties to try to resolve their differences, even if mediation is unlikely to succeed.
We have extensive experience in resolving seemingly intractable disputes using ADR, including working with experienced mediators, and we will use our knowledge and experience to help you to try to resolve your civil dispute using ADR.
