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Valentine v Allen and Others, Court of Appeal, 29 July 2003

5 August 2003
The issues

Trespass – Costs – Mediation.

The facts

Claimant had brought proceedings seeking to restrain an alleged trespass. The Respondents had been successful at first instance and on Appeal. The Claimant had offered to mediate. The Respondents had refused. The Claimant argued following Dunnett -v- Railtrack Plc that the Respondents should have their costs disallowed or reduced.

The decision

1. Although the Respondents had refused to mediate, they had made real efforts to settle the dispute by making offers, which were reasonable. This was evidenced by correspondence. Moreover, they had sought a “roundtable” meeting. The Defendant had refused the offers made.

2. The Respondents had not acted unreasonably by refusing the offer of mediation.

3. There was another issue supporting that view. When Claimant had sought permission to appeal the Judge’s Order as to costs in which the mediation issue had been dealt with Arden LJ had stated that it was not clear that the Claimant could have reached an agreement by mediation and that the failure to mediate was of no causal effect.

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