SHTUM SANCTION
A party’s silence in the face of an offer to mediate will, as a general rule, be considered unreasonable of itself and sound in a costs order. It was and it did in Northamber plc v Genee World Ltd and others [2024] EWCA Civ 428, [2024] All ER (D) 21 (May). Lord Justice Arnold stated that the general rule applied, even if a refusal might have been justified by the identification of reasonable grounds. Matters were compounded in this case by the fact that the defendant in the costs dock had breached a case management order requiring them to explain any failure to agree to mediation. After a chaser about mediation by the claimant’s solicitors, the solicitors for the defendant said nothing.
The sanction? The order for the defendant to pay 70% of the claimant’s costs was raised to 75%. A costs sanction did not automatically follow. The unreasonable refusal was a factor to be taken into account among the other circumstances of the case.
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