Halsey v Milton Keynes General NHS Trust
Jurisdiction | England & Wales |
Judge | Lord Justice Dyson |
Judgment Date | 11 May 2004 |
Neutral Citation | [2004] EWCA Civ 576 |
Docket Number | Case No: B3/2003/1458 and B3/2003/1582 |
Court | Court of Appeal (Civil Division) |
Date | 11 May 2004 |
[2004] EWCA Civ 576
Lord Justice Ward
Lord Justice Laws and
Lord Justice Dyson
Case No: B3/2003/1458 and B3/2003/1582
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM (1) Milton Keynes County Court
(2) Newcastle upon Tyne County Court
(1) His Honour Judge Charles Harris QC
(2) Mr Recorder Thomas QC
Royal Courts of Justice
Strand,
London, WC2A 2LL
Mr Allan Gore QC (instructed by Messrs Osborne Morris and Morgan) for Halsey (Appellant)
Mr Christopher Purchas QC and Mr Huw Lloyd (instructed by Messrs Barlow Lyde and Gilbert) for the Milton Keynes General NHS Trust (Respondent)
Mr Charles Foster (instructed by Messrs Crutes Law Firm) for Joy (Appellant)
Mr Christopher Purchas QC and Mr Howard Elgot (instructed by Messrs Ricksons) for Halliday (Respondent)
The Claimant (Steel) did not appear and was not represented
Lord Lester of Herne Hill QC for The Law Society as an Interested Party
Mr Michel Kallipetis QC and Mr Philip Bartle QC for The ADR Group as an Interested Party
This is the judgment of the court.
These two appeals raise a question of some general importance: when should the court impose a costs sanction against a successful litigant on the grounds that he has refused to take part in an alternative dispute resolution ("ADR") ? There seems to be some uncertainty as to the approach that should be adopted in answering this question: it has been the subject of consideration by courts on a number of occasions. A measure of its significance is that we have received detailed and helpful submissions from no fewer than four interveners, namely the Law Society, the Civil Mediation Council, the ADR Group and the Centre for Effective Dispute Resolution.
In the appeal of Halsey, the only ground of appeal is that, notwithstanding that the claim was dismissed, the judge was wrong to award the defendant, the Milton Keynes General NHS Trust ("the Trust") its costs, since it had refused a number of invitations by the claimant to mediate. There are two grounds of appeal in the case of Steel. First, it is said that the judge reached the wrong conclusion on the causation issue that he tried in the Part 20 proceedings between the defendants ("the causation issue") . Secondly, it is submitted that the judge was wrong to award the successful second defendant his costs against the first defendant, since the second defendant had refused a number of invitations by the first defendant to mediate. We shall start by giving some guidance as to the general approach that should be adopted when dealing with the costs issue raised by these two appeals. We shall then turn to the facts of the two appeals.
General encouragement of the use of ADR
As was explained in Lord Woolf's Final Report on Access to Justice (p 11), for some time before the Civil Procedure Rules ("CPR") came into force, resort by parties involved in litigation to ADR had been encouraged by the courts in various ways. The CPR, practice directions and pre-action protocols have built on these early developments. It is unnecessary to make extensive reference to demonstrate this. CPR 1.4(1) obliges the court to further the overriding objective of enabling the court to deal with cases justly by actively managing cases, and Rule 1.4(2) (e) defines "active case management" as including "encouraging the parties to use an alternative dispute resolution procedure if the court considers that appropriate and facilitating the use of such procedure". Rule 26.4(1) provides that "a party may, when filing the completed allocation questionnaire, make a written request for the proceedings to be stayed while the parties try to settle the case by alternative dispute resolution or other means".
The term "alternative dispute resolution" is defined in the Glossary to the CPR as a "collective description of methods of resolving disputes otherwise than through the normal trial process." In practice, however, references to ADR are usually understood as being references to some form of mediation by a third party. The general rule is that the unsuccessful party is ordered to pay the costs of the successful party ( CPR 44.3(2) (a)) . The cases in which the question of displacing this rule have been discussed have usually been concerned with the refusal of mediation by the successful party. The two appeals before this court fall into this category. In what follows we shall concentrate on the cost consequences of a refusal by the successful party to agree to mediation.
There are those who believe that the virtues of mediation have not yet been sufficiently demonstrated. There is some reference to this by Professor Hazel Genn in her excellent report "Court-based ADR initiatives for non-family civil disputes: the Commercial Court and the Court of Appeal" (March 2002), at pp 58–67. But we are in no doubt that we should proceed on the basis that there are many disputes which are suitable for mediation. This approach is consistent with, and (as we have seen) underpinned by, the Woolf reforms. It is also consistent with the fact there are now a number of court-based mediation schemes for civil non-matrimonial cases, which operate with varying degrees of success. The virtues of mediation in suitable cases are also recognised in the Chancery Guide (paras 17.1 and 17.3), the Queen's Bench Guide (para 6.6), the Admiralty and Commercial Court Guide (para D8.8) and the Technology and Construction Court Guide (para 6.4) . Judges in the Commercial Court routinely make "ADR orders" in the form set out in Appendix 7 to the Admiralty and Commercial Court Guide (see further para 30 below) .
We are also mindful of the position which has been taken by Government on this issue. Thus, in March 2001, the Lord Chancellor announced an "ADR Pledge" by which all Government departments and Agencies made a number of commitments including that: "Alternative Dispute Resolution will be considered and used in all suitable cases wherever the other party accepts it". In July 2002, the Department for Constitutional Affairs published a report as to the effectiveness of the Government's commitment to the ADR pledge. The report stated that the pledge had been taken very seriously, and identified a number of initiatives that had been introduced as a direct result of it. These included the following initiative on the part of the National Health Service Litigation Authority ("NHSLA"):
"The encouragement of greater use of mediation, and other forms of alternative dispute resolution, is one of the options considered by the NHSLA, who are responsible for handling clinical negligence claims against the NHS. The NHSLA is working with the Legal Services Commission to develop a joint strategy for promoting greater use of mediation as an alternative to litigation in clinical negligence disputes.
Since May 2000 the NHSLA has been requiring solicitors representing NHS bodies in such claims to offer mediation in appropriate cases, and to provide clear reasons to the authority if a case is considered inappropriate."
Strong support for the use of ADR in general, and mediation in particular, has been given by the courts in cases such as R (Cowl) v Plymouth City Council [2001] EWCA Civ 1935, [2002] 1 WLR 803, Dunnett v Railtrack plc [2002] EWCA Civ 303, [2002] 1 WLR 2434 and Hurst v Leeming [2001] EWHC 1051 (Ch), [2003] 1 Lloyds Rep 379.
We heard argument on the question whether the court has power to order parties to submit their disputes to mediation against their will. It is one thing to encourage the parties to agree to mediation, even to encourage them in the strongest terms. It is another to order them to do so. It seems to us that to oblige truly unwilling parties to refer their disputes to mediation would be to impose an unacceptable obstruction on their right of access to the court. The court in Strasbourg has said in relation to article 6 of the European Convention on Human Rights that the right of access to a court may be waived, for example by means of an arbitration agreement, but such waiver should be subjected to "particularly careful review" to ensure that the claimant is not subject to "constraint": see Deweer v Belgium (1980) 2 EHRR 439, para 49. If that is the approach of the ECtHR to an agreement to arbitrate, it seems to us likely that compulsion of ADR would be regarded as an unacceptable constraint on the right of access to the court and, therefore, a violation of article 6. Even if (contrary to our view) the court does have jurisdiction to order unwilling parties to refer their disputes to mediation, we find it difficult to conceive of circumstances in which it would be appropriate to exercise it. We would adopt what the editors of Volume 1 of the White Book (2003) say at para 1.4.11:
"The hallmark of ADR procedures, and perhaps the key to their effectiveness in individual cases, is that they are processes voluntarily entered into by the parties in dispute with outcomes, if the parties so wish, which are non-binding. Consequently the court cannot direct that such methods be used but may merely encourage and facilitate."
If the court were to compel parties to enter into a mediation to which they objected, that would achieve nothing except to add to the costs to be borne by the parties, possibly postpone the time when the court determines the dispute and damage the perceived effectiveness of the ADR process. If a judge takes the view that the case is suitable for ADR, then he or she is...
To continue reading
Request your trial-
R (on the application of Paul Crawford) v The University of Newcastle Upon Tyne
...to undergo mediation, the Defendant had unreasonably refused to do so. He relied upon the Court of Appeal's decision in Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576; [2004] 1 WLR 3002. Mr Speaight QC developed a number of detailed arguments. He submitted that, applying the ......
-
Rolf v De Guerin
...in a case like the present, where the parties had equally got across one another, as at any rate emerged at trial. 44 In Halsey v. Milton Keynes General NHS Trust [2004] EWCA Civ 576, [2004] 1 WLR 3002, this court gave detailed consideration to the circumstances in which it might be said ......
-
Brown (Tim) (as trustee in bankruptcy of the estate of Jane Elizabeth Rice) v (1) Rice (Stephen) (2) Patel (Smita); and ADR Group (as intervener)
...of the Chancery Guide 2005. These and other matters were referred to by the Court of Appeal in Halsey v Milton Keynes General NHS Trust [2004] 1 WLR 3002, at paras 4–8, per Dyson LJ, giving the judgment of the court. 13 Mediation takes the form of assisted without prejudice negotiation. In ......
-
OMV Petrom SA v Glencore International AG
...CPR has moved on such that the Court of Appeal should consider the matter afresh. Mr Matthews points to the decisions in Halsey v. Milton Keynes General NHS Trust [2004] 1 WLR 3002 and PGF II SA v. OMFS Company 1 Limited [2013] EWCA Civ 1288 as indicating that unreasonable conduct in the fo......
-
Mediation: Is It Ever Reasonable To Decline A Request To Mediate?
...will determine such issues having regard to all the circumstances of the particular case. In Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576; [2004] 1 WLR, the Court of Appeal identified six factors that may be relevant to any such (a) the nature of the dispute; (b) the merits ......
-
What Is Mediation, And Should It Be Made Compulsory For Civil And Commercial Disputes In Bermuda?
...(occasionally unreasonably and in bad faith). As the English Court of Appeal recognised in Halsey v Milton Keynes General NHS Trust [2004] 1 WLR 3002, robust judicial encouragement of mediation is often appropriate and necessary2, even though the English Court of Appeal, when deciding that ......
-
Local Government Law - Costs Sanctions on Refusing ADR
...in ADR) that was before the Court of Appeal on 11 May 2004 in Halsey v. Milton Keynes General NHS Trust and Steel v. Joy and Another [2004] EWCA (Civ) 576. Judgment was given by Dyson LJ. The Court noted (amongst other things) that Rule 1.4 (1) of the Civil Procedure Rules (CPR) requires th......
-
Compulsory ADR – Coming soon to a dispute near you?
...mechanisms. The legality question – is it lawful to compel a party to participate in ADR? In Halsey v Milton Keynes General NHS Trust [2004] 1 WLR 3002 the Court of Appeal thought that requiring parties to mediate would be an unacceptable obstruction on their rights of access to the courts ......
-
MEDIATION CLAUSES
...Law, Policy & Practice (US: Thomson Reuters, 2017) at p 163. 46 As Dyson LJ pointed out in Halsey v Milton Keynes General NHS Trust [2004] 1 WLR 3002 at [22], “mediation often succeeds where previous attempts to settle have failed”. The futility argument fails to take into account the intri......
-
Litigation - Remedies and Practice
...2015) at Section II (The Approach of the Courts – 4 Compliance). It is now plain, following Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576, that an unreasonable refusal to participate in alternative dispute resolution at any stage of the proceedings may result in adverse conse......
-
Dispute resolution
...Fabrication Pty Ltd v Baulderstone Pty Ltd [2009] VSC 405 at [10]–[17], per Vickery J. 27 Halsey v he Milton Keynes General NHS Trust [2004] 1 WLR 3002 at 3006 [5] (CA); SSC Plenty Road Pty Ltd v Construction Engineering (Aust) Pty Ltd [2016] VSCA 119 at [54]. See also John Holland Pty Ltd ......
-
Litigation
...by Ahmed, [2014] Cambridge Law Journal 35). 1092 Dunnett v Railtrack plc [2002] 1 WLR 2434; Halsey v he Milton Keynes General NHS Trust [2004] 1 WLR 3002; Burchell v Bullard [2005] BLR 330 at 338 [40], per Ward LJ; Rolf v De Guerin [2011] BLR 221. 1093 Burchell v Bullard [2005] BLR 330 at 3......
-
Court of Appeal mediation scheme - combined form 56A and 56B
...it considers that mediation or some other form of alternative dispute resolution should be attempted. See also Halsey v Milton Keynes [2004] EWCA Civ 576 and PGF II SA v OMFS CO1 Ltd [2013] EWCA Civ Once either party or legal representative on a party's behalf has indicated a desire to try ......