24 March 2003

This information is provided courtesy of Law-Now, CMS Cameron McKenna's free on-line information service.

www.law-now.com

Hot tip! Do not agree to mediation unless you intend to proceed
with it!

If you refuse to participate in a mediation that you have
already agreed to attend, you may be penalised in costs
even if your case is ultimately successful.

A successful appellant suffered this fate in the Court of
Appeal earlier this month (Leicester Circuits Ltd v Coates
Brothers plc [2003] EWCA Civ 333) as a result of its
withdrawal from a mediation to which it had previously
agreed, just 2 days before it was to take place.

Considering the parties' attitude toward mediation, and
relying upon the judgment in Dunnett v Railtrack [2002]
1 WLR 2434, the Court made it clear that having agreed
to mediation, it was not open to a party to withdraw from
it because they thought it had no realistic prospect of
success. While the Court did not assume that the
mediation in this case would have been successful, there
was a prospect it would have been, if it had been allowed
to proceed. As a result, this impacted upon the issue of
costs. While the appellant was awarded costs of the
appeal, it was only entitled to its costs of the proceedings
up until the date it agreed to mediate, losing out on the
costs of trial preparation and the trial itself.

If you require any further information please contact Tim
Hardy at tim.hardy@cmck.com or on
+44 207 367 2533 or Rachel Hartley at
rachel.hartley@cmck.com or on +44 207 367 2983.