COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL LONDON COUNTY COURT
HIS HONOUR JUDGE COWELL
Strand London, WC2A 2LL
B e f o r e :
LORD JUSTICE ELIAS
LORD JUSTICE TOMLINSON
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Mr J De Guerin appeared in person
Hearing date: Friday 2.2nd October 2010
Crown Copyright ©
Lord Justice Rix :
"Following the result of the last hearing in this case, and after taking legal advice, I am prepared to consider an offer of settlement from you/your client. I would like to hear your decision as soon as possible before we start the procedure ordered by the judge at the last hearing, before we employ an expert to provide a full report relating to the claim, and before we employ a solicitor to handle the remainder of the case.
I am prepared to consider a settlement in order to avoid further expense on both sides."
"Our client is willing to attend a formal mediation or round table meeting with a view to discussing settlement. Please confirm your client's willingness to engage in the same with dates of availability."
The offer was said to be available to Mr Guerin or Greyfox.
"Judge: ...because the claim was for very, very much more than I have awarded, there should be no order as to costs between the parties until...You [Mr Guerin] were right not to respond to the Part 36 offer which was first made on 24th June 2009...So I think it is no order until 24th June but defendant to recover costs against the claimant after the three weeks expiry of 24th June 2009...
Pringle: Do you mean the claimant to pay the defendant's costs?... On what basis?
Judge: Because you make an offer which is too high...
Pringle: Your Honour, there is something that I do not understand: the basis upon which you are making that order and-
Judge: I am making that order because ever after that date you would have accepted £14,000 and they were right to say, "No, we are not going to pay that. We are going to trial."
" ...it seems to me, first, that a small building dispute is par excellence the kind of dispute which, as the recorder found, lends itself to ADR. Secondly, the merits of the dispute favoured mediation, The defendants behaved unreasonably in believing, if they did, that their case was so watertight that they need not engage in attempts to settle...The stated reason for refusing mediation that the matter was too complex for mediation is plain nonsense. Thirdly, the costs of ADR would have been a drop in the ocean compared with the fortune that has been spent on this litigation...
 ...Halsey has made plain not only the high rate of a successful outcome being achieved by mediation but also its established importance as a track to a just result, running parallel to that of the court system. Both have a proper part to play in the administration of justice... The parties cannot ignore a proper request to mediate simply because it was made before the claim was issued..."
"Encouraging ADR. Mediation is dealt with in chapter 36 below. The two principal forms of ADR are conventional negotiation and mediation. ADR has proved effective in resolving construction disputes of all sizes. In relation to small building disputes, however, it is particularly important to pursue mediation, in the event that conventional negotiation fails."
See also chapter 36 of the report at pages 355/363 on mediation.
Lord Justice Elias:
Lord Justice Tomlinson: