0370 270 6000

already registered?

Please sign in with your existing account details.

need to register?

Register to access exclusive content, sign up to receive our updates and personalise your experience on brownejacobson.com.

Privacy statement - Terms and conditions

Forgotten your password?

Potential for adverse costs orders even in ADR

10 September 2014

In the case of Ensign Highways Ltd v Portsmouth City Council, Ramsey J made an order for pre-action disclosure in a dispute that was to be subject of adjudication.

Ensign and the council were party to a contract, pursuant to which any dispute was to be settled by way of adjudication. A dispute arose between the parties and, ahead of the adjudication hearing, Ensign requested the council to disclose all documents identified through a search against specified search terms. As a result of the search 150 documents where identified but the council refused to disclose these documents to Ensign.

Ensign applied to the court for a pre-action disclosure order.

On hearing the application the court granted the order on the grounds that:

  • these documents would form part of standard disclosure (if the matter were the subject of proceedings); and
  • they would enable the adjudicator to dispose of the matter more fairly.

It is likely that the council will also have been ordered to meet the costs of the application.

This case provides a warning that ADR does not provide parties total immunity from the court process and the potential for adverse costs orders.

Related opinions

Business and Property Courts: remote hearings to remain, for now…

For business disputes, it looks likely that remote hearings will be an option into the future.

View blog

Flexible working, childcare and indirect sex discrimination – important reminder

The courts have long recognised that, on a societal level, women bear a greater burden of childcare responsibilities than men which can make it more difficult for women to comply with employer requirements for flexible working (known as the ‘childcare disparity’).

View blog

Insolvency applicants: getting the basics right

A number of interesting developments have emerged from what was quite a run-of-the-mill insolvency application brought by a litigation funder assignee.

View blog

School not liable for reckless actions of a student

The decision reinforces that the standard of the duty of care owed by schools is one or reasonableness.

View blog

Mailing list sign up

Select which mailings you would like to receive from us.

Sign up