The courts have long been moving to encourage parties to disputes to seek to resolve those disputes via alternative methods. The court's overriding objective is for 'the court to deal with cases justly and at propor-tionate cost' (according to Pt 1 of the Civil Procedure Rules, or CPR). Parties to a dispute are under a duty to help the court to further the overriding objective, and this is commonly interpreted by the courts to mean that parties to litigation should seek to find a resolution through alternative dispute resolution wherever possible.
Case law has developed since the CPR was introduced which shows that the court will be willing to impose costs sanctions on parties who do not agree to alternative dispute resolution (ADR) and are none the less successful in their claims. Claimants will often be denied full recovery of their costs of bringing an action if they continued with the litigation in spite of a defendant's offer to seek to resolve the dispute.
The High Court has now added to that body of case law with the judgment in Laporte v Metropolis Police Comr [2015] EWHC 371 (QB). In that case, the claimants sought damages for assault, battery, false imprisonment and malicious prosecution from the defendant commissioner, and sought a declaration that he had violated their human rights. The claimants had been protesting at a council meeting on proposed budget cuts, and had entered the building and resisted being removed. Police officers ejected the protesters from the building using some force in the face of their resistance, and the protesters therefore brought a claim against the commissioner.
The claimants were unsuccessful, as the judge found that the police officers involved had not used unreasonable force. Following the ordinary principles concerning the costs of litigation, the claimants would ordinarily be ordered to pay the commissioner's costs of defending the defeated claim. However, the claimants asked the court to award no costs on the basis that the claimants had proposed ADR which had not taken place. The claimants suggested settlement meetings or a mediation on multiple occasions, and the parties tried to arrange a round table meeting. However, the defendant subsequently stated that it did not consider ADR to be an appropriate use of resources, and gave no further reasons for disengaging.
Despite the fact that the defendants had been taken to court and had successfully defended the claim against them, the court found that the defendant had failed without justification to engage in ADR with a reasonable prospect of success. The defendant argued that it thought that any settlement meeting would result in the claimants seeking a monetary payment, which the defendant was unwilling to make, however the judge found that this was not adequate reason to fail to engage in ADR.
Costs consequences
This case further demonstrates that failing to engage in ADR can have negative costs consequences, even if you are successful in the ultimate litigation. Offers of ADR should always be considered, even if the other side's attitude is uncompromising, and any refusal to engage in ADR should be accompanied by robust reasons.
Previously published in the Construction Law Journal
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