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Hurst v Leeming (J), Chancery Division

24 June 2002
The issues

Professional negligence – mediation.

The facts

The Claimant’s action in which he brought proceedings for professional negligence against a Barrister concerning his conduct of proceedings was dismissed. The Claimant submitted that the Defendant should not be entitled to his costs, because Claimant had invited the Defendant to mediate and Defendant had refused. The Defendant argued that the refusal to mediate was reasonable because of the following reasons:-

(i) Costs already incurred at the time the request was made;

(ii) The allegations were allegations of professional negligence and were serious to the Defendant;

(iii) The claims were completely lacking in substance;

(iv) There was unlikely to be a successful outcome to the mediation proceedings;

(v) The Claimant had shown himself to be an obsessive character (revealed by his history of litigation).

The decision

1. Dunnett -v- Railtrack and Cowell -v- Plymouth City Council were support for the proposition that a party unreasonably refusing to mediate might be penalised in costs.

2. The fact that substantial costs had already been incurred, did not of itself, justify a refusal to mediate, but it was a relevant factor.

3. The allegation of professional negligence was not a sufficient reason to refuse.

4. Nor was the fact that a party thought they had an unbeatable case.

5. The character of the Claimant leading to the view that mediation had no realistic prospect of success was a justifiable reason.

6. The Defendant should not be penalised in costs.

7. This was an exceptional case.

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