Down with Protocols!

Gary Webber Law, Tips, Trends 2 Comments

The Civil Justice Council has published an interim report on ADR in Civil Justice. They invite submissions on that report ahead of a final report to be submitted to Government. One of the topics discussed in the report is that of pre-action protocols (para 5.10 at page 25). The report states protocols “have undoubtedly influenced parties to exchange adequate information …

The Boundaries Bill again …

Gary Webber Law 4 Comments

In our last post on this topic Jacqui Joyce and Peter Bourke outlined the proposals in the Property Boundaries (Resolution of Disputes) Bill, which if enacted, will establish a system for determining boundary and rights of way disputes by adjudication by surveyors. In this post Gary Webber looks at how the Bill, if enacted, will affect mediation. Badly! Introduction Mediation …

Don’t drag your feet on mediation

Jacqui Joyce Law 0 Comments

Jacqui Joyce looks at a recent case which held that it is not enough for parties to agree to mediate. In order to avoid costs penalties they must actively get on with it and not ‘drag their feet’. There are vast amounts of cases punishing parties in costs when they unreasonably refuse to mediate. What happens when parties agree to …

Boundary disputes and all that …

Jacqui Joyce Law 0 Comments

The Property Boundaries (Resolution of Disputes) Bill has recently cleared its second reading in the House of Lords. In this article Jacqui Joyce and Peter Bourke look at the proposals. Boundary disputes are seldom about “just” the boundary. There are often many underlying issues between the neighbours. How they can best be resolved is a matter of debate but most …

Reference to a party’s refusal to mediate in statement of case struck out

Jacqui Joyce Law 0 Comments

A reference in a Reply, to the defendant refusing to mediate, was struck out. It breached the rule against disclosure of without prejudice correspondence. (R (Wildbur) v Ministry of Defence [2016] EWCH 821 (Admin) , Cranston J). Background The Claimant made an application for judicial review and proposed mediation. In granting permission for that review Holman J said: ‘I urge …

Failure to mediate – failure to mitigate?

Jacqui Joyce Law 0 Comments

If you do not mediate in a case in which you are involved as a result of your previous solicitor’s negligence, can this be treated as a failure to mitigate? That was the question that was raised in Orientfield Holdings Ltd v Bird & Bird [2015] EWHC 1963] The claimant had exchanged contracts to purchase a property for over £22m …

ADR clauses in contracts

Jacqui Joyce Law 0 Comments

Parties to major building projects have openly discussed the effectiveness of signing up in advance to their own agreed form of alternative dispute resolution, rather than relying on adjudication or court procedures. The emphasis is on saving costs and keeping the project going. ADR clauses in various guises have been subject to court scrutiny – are they enforceable? There was …

Compulsory mediation for neighbour disputes!

Gary Webber Law 0 Comments

The judge in this latest case (Bradley v Heslin) started off the judgment with the following words: “Rather to my surprise I find myself trying a case about a pair of gates in Formby”! He went on to suggest a form of wording for directions in boundary and rights of way disputes, which in effect, would make it compulsory to …

Plebgate, Jackson, costs and mediation!

Gary Webber Law 0 Comments

When Andrew Mitchell MP got into a little fracas in Downing Street whilst pushing his bicycle, he could not possibly have conceived of the consequences. He lost his job, police officers have been dragged before Parliamentary Select committees, arrests are taking place and libel actions abound. In a new twist, the incident is playing a significant part in the working …