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Rolf v De Guerin

Posted on 09/02/2011 · Posted in Mediation

Attempts to mediate may help party’s costs position

The Claimant hired the Defendant to construct a garage at her property. Part way through the construction relations between the two parties soured and the Claimant ended up paying another builder to complete the work. The Claimant commenced proceedings against the Defendant to recoup what she had lost, but was keen to avoid a trial and made several part 36 offers and attempts to enter into mediation. The Defendant refused the Claimant’s advances until the week before the trial, but negotiations at that point proved unsuccessful.

Ultimately the Claimant was awarded a figure much lower than she’d claimed for and no order for costs was made for the period up until the expiry of her part 36 offers, and thereafter there was an order that she pay the Defendant’s costs (as she was ultimately awarded less than her offers). The Claimant appealed the costs point.

The Court of Appeal said that no order should be made as to costs at all. On the facts the part 36 offers should not act to prejudice the Claimant. Moreover, the Court of Appeal suggested that the fact the Claimant had made so many offers to settle and to enter into mediation should be taken into account when the court went to exercise its discretion. It was clear on the facts that the Claimant did not wish to litigate, she made so many attempts to avoid it, and it was also clear that there was a high liklihood that timely mediation would have been successful. The Defendant had provided no adequate reason for refusing to mediate, and when he finally agreed to mediate it was too late.

Link: Rolf v De Guerin [2011] EWCA Civ 78

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