PGF II SA v OMFS Company 1 Limited seems to be another case in which the relentless march to mediation is driven forward by the courts. The courts are there to do a job, but unfortunately they seem hell-bent on driving those seeking justice away from the courts.
Alternative dispute resolution is merely one tool in the cabinet of the litigator and ultimately it should be for the parties to decide how to progress their dispute without undue pressure from the courts. If one party does not wish to mediate, then that should be their choice. If they are confident of their position, why should they incur costs in mediating? If they play for high stakes and go to trial, and are successful, there is no reason for them not to recover their costs.
The unsuccessful party should not complain about a failure to mediate – if they did not want the cost risk they could always have capitulated. I refer the reader to the unreported case of Bolligold Limited v Danham Limited, in the Central London County Court. At the first case management conference, the judge was adamant that the case would be stayed for the parties ‘to consider mediation’. He was told in no uncertain terms by the solicitor for the claimant that he was wasting everyone’s time, because the claimant was not prepared even to consider mediation.
A stay was ordered for a number of weeks notwithstanding, which did nothing more than delay proceedings unnecessarily. The claimant maintained their refusal to even discuss mediation, the case went to trial over four days, the claimant won and recovered their costs on an indemnity basis. Justice was done; surely that is the business of the courts, rather than forcing parties to engage against their will in a process of fudge and compromise.
Michael R Watson, solicitor, Leeds
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