In a case decided earlier this year the claimants made a claim against Channel 5 for damages for misuse of private information in respect of an edition of “Can’t pay? we’ll take it away”. Approximately 9.65 million people watched the claimants being evicted from their home.
Following a letter of claim, Channel 5’s solicitors said that they intended to defend the claim. In response to that the claimants’ solicitors said that with “fundamental issues of law and regulation in dispute we do not consider ADR (alternative dispute resolution) would be productive or appropriate at this stage”. They went on to say however that their clients would be prepared to review that option once the substantive issues of law and regulation had been addressed further.
Channel 5 responded by saying that they did not regard the claimants’ claim for an injunction to be any sort of barrier to ADR. In a subsequent letter following the issuing of proceedings the claimants’ solicitors still said that the circumstances were not right for ADR particularly where there was no acceptance of wrongdoing by Channel 5. They said, however, that they were fully prepared to engage with ADR at a suitable time and invited proposals in relation to this. Channel 5, at least at that stage, made no proposals.
Following the making of a formal offer by Channel 5, and a subsequent indication that they might be prepared to consider writing a letter of apology, the defendant’s new solicitors again proposed mediation. During any such mediation they said that the claimants could explain why they felt a public apology was fundamental to their needs. Although the claimants’ solicitors then agreed to mediation, that was not successful.
At the trial of the claim, the claimants won but did not beat the defendant’s offer. Ordinarily that would mean that the claimants would still be entitled to receive their costs up to the deadline for acceptance of the offer. Channel 5 argued that as the claimants had wrongly refused to engage in ADR before the offer was made, they should be deprived of a percentage of their costs. The judge, decided that the claimants had not in fact refused to engage in ADR since although they did not embrace the first suggestion, they said that they would keep it under review. Subsequently they had invited Channel 5 to put forward proposals for mediation which they did not for a period of time do. When they did the claimants promptly agreed.
Although in this instance the claimants were not deprived of any of their costs prior to the making of the offer the case is a salutary reminder that in the context of any dispute, any party to litigation must think very carefully before refusing to mediate because of the adverse cost consequences which may follow. Even if there are fundamental issues of fact and law in dispute between the parties which, such that going into a mediation makes settlement look unlikely, sometimes the intervention of a skilled independent mediator results in ‘mediation magic’ and even protracted and bitterly disputed disputes settle on the day.
This is not legal advice; it is intended to provide information of general interest about current legal issues.
