A new pilot within the Court of Appeal Mediation Scheme (CAMS) announced by the Master of the Rolls Lord Neuberger in April was given fresh impetus by the Court of Appeal in Ghaith v Indesit [2012] EWCA Civ 642. This was a personal injury appeal by Mr Ghaith against dismissal of his claim against his employers Indesit for breach of statutory duty in relation to a back injury suffered at work. The value of the claim was put at about £60,000 if liability was established. In giving permission to appeal, Toulson LJ recommended that the parties utilise mediation, but Indesit’s insurers rejected this on the grounds that costs already incurred exceeded the amount at stake.

The Court (Longmore, Ward and Patten LJJ) allowed the appeal and remitted the case back to the County Court for the assessment of damages, but in doing so Longmore LJ firmly rejected Indesit’s excuse for rejecting mediation. He said:

This is an inadequate response to the Court’s encouragement of mediation, since a full day in this Court will inevitably result in a substantial increase in costs. Indesit’s reaction is all too frequent and the Court has, since April of this year, decided that any claim for less than £100,000 will be the subject of compulsory mediation. It is devoutly to be hoped that such mediation will mean that these comparatively small claims will not have to e adjudicated by this Court so frequently in future.

Ward LJ could not resist endorsing this postscript to Longmore LJ’s judgment, reminding litigants that the granting of permission to appeal shifts the balance of risk. He also picked up without specifically referencing it an excuse based on factor (c) in Halsey - the fact that there had been previous settlement discussions.

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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).