Claimant awarded costs of the assessment on the indemnity basis over Defendant's failure to respond to offer of ADR
In the Various Claimants v Mirror Group Newspapers litigation, Master Gordon-Saker has ruled that the Claimant should recover their costs of the assessment on the indemnity basis as a result of the Defendant's failure to respond to the offer of mediation.
The prospect of ADR was initially raised by the Defendant and the Claimant responded by proposing a potential mediator and requesting that the Defendant agree to cover the costs of the process.
The Defendant did not respond to the Claimant despite numerous chasers and Master Gordon-Saker considered that the Defendant had acted unreasonably in failing to engage in the process:
"it seems to me that there has been a blanket refusal by the Defendant to engage in any process of discussing ADR"
"I have no hesitation in concluding that the Defendant has behaved unreasonably in failing to engage in the process of discussing at least the possibility of ADR, and mediation in particular and given that the common costs base costs have been agreed, it seems to me that there was no reason for pessimism as to the outcome of any mediation"
Master Gordon-Saker went on to order that the Defendant pay the costs of the assessment of the common costs bill and the four individual claims on the indemnity basis.
This ruling is further evidence that any failure to engage in ADR, whether that be in the main action or during costs proceedings, is likely to lead to sanctions being imposed by the Courts against the defaulting party.
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