Laporte and Christian v Metropolitan Police
The police failure, without adequate justification, to engage in ADR was a factor to be considered on the question of recoverable costs.
The police failure, without adequate (or adequately articulated) justification, to engage in ADR which had a reasonable prospect of success was a factor to be considered on the question of recoverable costs. Exercising his discretion, Turner J disallowed one third of the Commissioner’s costs, at the same time rejecting the Commissioner’s application for costs on the indemnity basis.
This decision follows the liability trial last year, the subject of a Weightmans’ legal update circulated on 7 November 2014. In summary, the removal by force of protestors at a public meeting was held lawful and the Commissioner won on all substantive points.
On the question of costs, the claimants argued that there should be no order for costs as the Commissioner had refused to engage in ADR. In addition, the claimants relied on the Commissioner’s failure to respond to the letter of claim and errors in his schedule of costs. In response, the Commissioner sought all of his costs on the indemnity basis.
Readers are referred to the transcript of the judgment for full details of the factual background to the conduct of the litigation. In brief, following intimation of the claim in mid June 2012, the claimant issued proceedings in the absence of a substantive reply in early 2013. The Commissioner’s allocation questionnaire declined the opportunity to settle at that stage, but flagged an open mind in relation to later discussion on appropriate matters.
The claimants made a formal offer of mediation in September 2013 and the Master ordered a response to that formal offer shortly afterwards. Although that deadline was missed, further communication took place and the Commissioner offered to meet to narrow the issues for trial in early 2014.
Both sides agreed to meet on an “open minds” basis on a date to be fixed, although the Commissioner had by then formed the impression that the claimants only regarded ADR as worthwhile if an offer of monetary compensation was to ensue. Dates were proposed and correspondence was exchanged. The Commissioner stated that although a financial offer was unlikely it could not be ruled out, before expressing the fear that the claimants were making it a pre-condition of mediation that there would be money on the table.
The claimants responded that their view remained that compensation would be necessary to compromise the claim but they were willing to listen to what the Commissioner had to say in that regard “and vice versa in the spirit of ADR”. The claimants also confirmed that they would not object to a meeting between solicitors and clients without counsel if that would make it easier to find a date.
A PTR took place at the end of May 2014 and the Commissioner again got the impression that the claimants saw money as a pre-requisite to any compromise, despite the stated willingness to come to ADR with open minds. The claimants continued to pursue confirmation of arrangements.
In early June an email was sent on behalf of the Commissioner indicating that ADR was no longer thought “an appropriate use of resources for either party” based on what was said at and immediately following the PTR. The claimants sought an explanation for the refusal to meet for ADR, reiterating their position.
Part 36 offers were then made by the claimants, accompanied by an indication that “the claimants’ door remains open to ADR, as it has done so throughout these proceedings, in the remaining 3 weeks before trial”. No response was received before the matter went to trial, the Commissioner then winning on liability across the board.
The judge applied the factors set out in the Court of Appeal decision in Halsey v Milton Keynes General NHS Trust  1 WLR 3002, as restated in the more recent Court of Appeal decision in PGF II SA v OMFS Co 1 Limited  1 WLR 1386. Applying those factors in turn, the judge found as follows:
The nature of the dispute
The Commissioner argued that the claimants were litigating a point of legal principle concerning police powers and alleging that an inspector had fabricated his account. The judge concluded that the nature of the case did not make it unsuitable for mediation. He observed that there were “issues of pure fact to be resolved about what happened on the staircase upon which both sides ran the risk of adverse findings. There was no continuing commercial relationship between the parties and it is unrealistic to suggest that a settlement by way of ADR would have been appropriate for this type of dispute.”
The merits of the case
The Commissioner accepted in his skeleton argument that he was “prepared to mediate up to the point that it was apparent that there was no scope for narrowing the issues”. The judge interpreted that as a concession that the merits of the defence were not so strong in themselves as to justify a refusal to engage in ADR. The judge noted that a number of his expressed criticisms of defence witnesses at the trial evidenced “food for thought in predicting [the] chances of success”.
Have other settlement methods been attempted?
The judge observed that the Commissioner had made no offer to settle before ADR was suggested and could not be said to have exhausted other opportunities to avoid the need to go to court.
The cost of mediation would be disproportionately high
The Commissioner conceded that the cost of mediation in itself would not have been disproportionately high but argued that any settlement would have included a liability to pay a significant amount in costs. That was only a factor, according to the judge, of potential relevance in determining whether mediation had a reasonable prospect of success (see below).
A formal offer to mediate had been made September 2013, long before the trial and delay was not an issue.
Whether the mediation had a reasonable prospect of success
Having cited Halsey extensively, the judge made the following observations:
- The Commissioner at no time excluded the possibility of a money offer;
- The claimants at no time insisted that money was required as a formal pre-condition of ADR;
- Predictions about what it might take to reach a settlement did not amount to formal pre-conditions and “tactical positioning should not too readily be labelled as intransigence”;
- ADR was on the claimants’ agenda from the outset and should not have been viewed as purely tactical;
- Preparations for trial on behalf of the Commissioner appeared to have taken over pursuance of ADR as a priority in the months leading to the hearing.
Taking those observations into account, the judge concluded that he was “satisfied that there was a reasonable chance that ADR would have been successful in whole or in part”.
The court considered the case of Daniels v Metropolitan Police  EWCA 1321, in which it was held it may be reasonable for a defendant routinely facing wholly unfounded claims to take a stand, even where costs would be disproportionate. Here, the Commissioner had never put the case in that category and there was “no real risk here of any settlement having a potential impact on police powers or policing tactics”.
Based on his assessment of the Commissioner’s response to the request to engage in ADR, the judge concluded that the Commissioner had failed, without adequate (or adequately articulated) justification, to engage in ADR which had a reasonable prospect of success. As a result, that was a factor to be taken into account when exercising his broad discretion on costs.
At the same time, the failure to provide a substantive reply was also considered and so too discrepancies on the costs’ schedules. The costs’ schedules were not regarded as influential in the exercise of the judge’s discretion on costs, but to the limited extent that the failure to provide a substantive reply corroborated the judge’s view that “the defendant stumbled past ADR on the way to the hearing rather than engaging with it with proportionate commitment and focus”, then that failure was to be taken into account.
Weighing his findings in the balance, the judge exercised his broad discretion on costs by awarding the Commissioner two-thirds of his costs on the standard basis.
This case is a timely reminder of the increasing importance of engaging in ADR as an alternative to the conventional trial process. It remains perfectly appropriate to reject an invitation to engage in ADR in appropriate cases, but refusals should be carefully considered and clearly articulated, as should any “formal pre-conditions” to participation in ADR. Otherwise, the price of going along with the notion of ADR but not then engaging in the process can generate as an unwelcome sting in the tail, especially in cases like this where the legal arguments have been won across the board.