The Court of Appeal has delivered a judgment strongly reiterating its support for the role of ADR in civil litigation and extending the existing principles governing the question of when a litigant's failure to engage in ADR will justify a court imposing costs sanctions upon it (as established in Halsey v Milton Keynes General NHS Trust [2004] 1 WLR 3002)

In particular, it has confirmed that a party's silence in the face of a serious invitation to mediate will, as a general rule, be considered to be of itself unreasonable and will warrant a costs sanction – even if there may have been reasonable grounds that would have justified the party expressly refusing the proposal.

In doing so, the Court has sent a clear message that it expects parties not only to participate in mediation where it is appropriate but also to engage constructively in discussion as to whether and when it will be appropriate in any particular case:  PGF II SA v OMFS Company Limited [2013] EWCA Civ 1288.

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Jan O'NeillJan O’Neill

Professional support lawyer,
dispute resolution, London

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+44 20746 62202