This was a simple dispute! There was a modest claim and a large counter-claim for which “there was never any evidential basis.” Lord Justice Goldring gave the judgment in this matter of Peakman v Linbrooke Services Ltd which was heard in the English Court of Appeal on 8th October 2008. Here’s a taste of what he said …
“Relative to the sums involved the costs are enormous. Linbrooke’s costs below were estimated to be £32,700 before the costs of an 8 day trial. Mr. Peakman’s costs were some £18,000. According to the Statement of Costs supplied to this court Mr Peakman’s costs of his appeal (taking into account the uplift on a conditional fee agreement) amount to £30,481.80. This is deeply troubling, not only for this case but as a reflection of the least satisfactory aspect of our civil justice system. It makes no sense at all for over £100,000 and 9 days (including the appeal) to be spent on what was a perfectly straightforward piece of litigation about a few thousand pounds.”
So the partially “successful” defendant received £265 compensation but had to pay its own costs and half of the claimant’s, a figure of something like £75,000. The claimant got off more lightly – he only had about £25,000 to pay!
To quote Lord Ward in Egan v Motor Services (Bath) Ltd 2007“this case cries out for mediation”. Actually it screams out for mediation. Why was it never tried? Did either party suggest it? Why was the Court of Appeal’s recommendation to use it not taken up? Maybe the parties will post an explanation here …
The likelihood is that had they appointed a competent mediator then they would have been assisted in negotiating a settlement that they could both live with. They would have avoided huge wasted expense (they were in court for 8 days!). At the very least the process of reality testing and information exchange that goes on in mediation would have made clear what the judge ultimately found about the counter-claim.
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It is difficult to mediate if one party has an intense dislike of the other and a desire to do everything to ensure the opponent is beaten . I believe that was the reason no mediation took place in this case .
John thank you for your comments. It is certainly very difficult to negotiate in the circumstances you describe – that is why they ended up in court. In the jargon, a mediator will separate the people from the problem. The party with the intense dislike of the other still has interests which need to be met, winning at all costs is unlikely to be one of them.
A desire to “beat” the opponent in court is something the UK judges are now discouraging with mediation directions and costs sanctions where appropriate.
See my earlier post http://heskethmediation.wordpress.com/wp-admin/post.php?action=edit&post=498