The High Court has imposed indemnity costs in two recent cases as a result of a party’s unreasonable failure to engage in ADR: DSN v Blackpool Football Club Ltd [2020] EWHC 670 (QB) and BXB v Watch Tower and Bible Tract Society of Pennsylvannia [2020] EWHC 656 (Admin). In both cases, the party’s belief in the strength of its case did not warrant a refusal to participate in settlement negotiations. These decisions are further examples of a trend towards courts giving less weight to the ‘merits of the case’ as one of the factors taken into account when deciding whether a party was acting unreasonably in refusing to engage in ADR.

In the current environment – where judicial resources are stretched and courts have to prioritise between cases – parties can expect the courts to be even more robust in their exercise of the power to sanction parties who do not sufficiently explore settlement opportunities.

For more information see this post on our ADR Notes blog.