Dunnett v Railtrack Really Lives: Sanctioning For Refusing to Mediate

A note on Rolf v De Guerin [2011] EWCA Civ 78

In case there was any doubt about the continuing force of that milestone decision, Dunnett v Railtrack [2002] EWCA Civ 302, in which for the first time since the CPR were introduced a successful litigant did not get the costs award they might have expected because they refused to mediate, the Court of Appeal has come close to repeating that decision in Rolf v De Guerin. Like another significant appeal decision in this field – Burchell v Bullard [2005] EWCA Civ 358, Rolf involved a small building claim, in which Mrs Rolf hired Mr Guerin or his company (the judge found it was the former) to build a garage for £34,000 and a roof extension for £18,000. Mrs Rolf ’s husband intervened too much for Mr Guerin’s liking; Mrs Rolf stopped her weekly installment payments to Mr Guerin in response to his protests, and Mr Guerin walked off the job. By this time the shell of the garage had been built (still without a door and roof) and the loft works had hardly started. By this time, Mrs Rolf had paid nearly £29,000 in all to Mr Guerin, plus purchasing some supplies.

Events then developed as follows:
3 July 2008 - Mrs Rolf issued a claim in person for £50,000. Soon after thus Mr Guerin filed his own defence asserting that the correct defendant was Mr Guerin Ltd. 16 Feb 2009 - Mr Guerin’s application to strike out the claim failed, but the court ordered Mrs Rolf to particularise her claim fully.

23 Feb 2009 - Mrs Rolf wrote to Mr Guerin’s then solicitors saying that after taking legal advice she would consider an offer to settle before embarking on instructing solicitors and expert. 26 Feb 2009 - Mr Guerin’s solicitors said they could not advise further until the claim was particularised.

16 Mar 2009 - Mrs Rolf drafted fuller particulars with legal and expert advice, now claiming in excess of £50,000.

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by Tony Allen

Tony Allen is a Solicitor, Direct Mediator and Senior Consultant for The Centre for Effective Dispute Resolution (CEDR).