The Court of Appeal has recently found that a party’s failure to respond to an invitation to mediation amounts to unreasonable conduct.


14 October 2014

By Justin Emerson

The above case settled with the claimant accepting at the last minute the defendant’s part 36 offer. However, the defendant had previously failed to respond entirely to an invitation to attend mediation leading the court to impose a costs sanction that was upheld by the Court of Appeal.

The case of Halsey v Milton Keynes General NHS Trust found that parties should not be compelled to mediate by the court. However, in this more recent case it was the defendant’s failure to respond to the invitation that was seen as unreasonable conduct.

As Lord Justice Briggs noted in his judgment, this approach endorses the advice given at 11.56 of the ADR Handbook that “silence in the face of an invitation to participate in ADR is, as a general rule, of itself unreasonable, regardless whether an outright refusal, or a refusal to engage in the type of ADR requested, or to do so at the time requested, might have been justified by the identification of reasonable grounds.”

The Jackson reforms promote the use of ADR to settle disputes and avoid cases unnecessarily getting to court for the simple reason that cases that do get to court will entail all parties incurring significantly more costs.

This recent endorsement of the Jackson reforms should remind and encourage parties involved in disputes to at least attempt to engage in ADR prior to a case getting to court as failing to do so could result in cost sanctions being made against them.

The above is not legal advice; it is intended to provide information of general interest about current legal issues. 

If you require further information please contact Justin Emerson on 01245 228113 or email