PGF II SA v OMFS Company [2012] EWHC 83 (TCC); [2013] EWCA Civ 1288 – Law Journals

Construction Focus: Politics of the judiciary

John Starr focuses on three cases that highlight pitfalls for the construction law practitioner ‘What effect would an application to correct a slip in the decision have on a party’s ability subsequently to raise a jurisdictional challenge?’In this article I examine three recent cases of interest: Dawnus Construction Holdings Ltd v Marsh Life Ltd [2017], …

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Construction Focus: Time for an exception?

John Starr investigates the use of mediation in construction disputes and debates its effect on individual access to justice ‘Access to justice can mean not only the objective notion of justice for all, unfettered by troublesome low-value cases, but also the subjective notion of public vindication of one’s position.’ Mediation has evolved, over the decades …

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Alternative Dispute Resolution: Being nice

Andrew Hogan sets out the different strategies for approaching mediation ‘What is crucial is to lay the groundwork early with a detailed and reasonable offer of ADR in whatever mode is thought appropriate.’Alternative dispute resolution (ADR) is an alternative to litigation. Seen 20 years ago, as touchy-feely nonsense, ‘being nice’ to the ‘being nasty’ of …

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Part 36: Humble offerings

David Sawtell analyses recent caselaw on Part 36 ‘There is a tension between the natural inclination to make a proportionate costs order where a party has lost on discrete issues and the prescriptive nature of Part 36.’Practitioners frequently debate tactics and strategy when negotiating the litigation and settlement of claims. One of the most important …

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Costs Sanctions: Every loser wins

The courts have once again punished a wholly successful party in costs for their unreasonable refusal to mediate – a trend that is only likely to grow, writes Ben Handy ‘The judge found that there were reasonable prospects that mediation would have succeeded, at least in part. The defendant was not justified in coming to …

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ADR: Mediate and be damned

Neil Jamieson examines the increasing significance of mediation ‘While mediation remains a voluntary process which no party can be compelled to engage in, there is now is an undeniable onus on parties to attempt alternative dispute resolution if they wish to avoid costs sanctions.’Would-be litigants certainly cannot be criticised for approaching the prospect of bringing …

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Mediation: Give peace a chance

Michelle Knight reports on the rejection of an offer to mediate ‘While BAE’s view of the merits provided some justification for not mediating, other factors showed that BAE was unreasonable in rejecting NGM’s offer to mediate.’Parties to civil litigation should take note of a recent decision in the TCC which considered whether the successful defendant …

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Non-Court Dispute Resolution: Alternative routes

Frances Bailey outlines options and steps that may be taken by the courts to encourage parties to attend non-court dispute resolution ‘The court’s powers are limited in that it cannot force either party to engage in dispute resolution; it can simply adjourn the proceedings to enable them to obtain information.’ Resolution’s third annual Family Dispute …

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Construction Focus: An unreasonable refusal

John Starr considers a case where no costs sanctions were imposed despite an unreasonable refusal to mediate ‘In this case, the judge came to the conclusion that the fair and just outcome should be that neither party’s conduct should be taken into account to modify what would otherwise be the general rule on costs.’ In …

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Mediation: After Jackson

Adam Carvalho and Lizzy Sainsbury set out two cases where the courts had to consider whether a refusal to mediate was reasonable ‘At the time of deciding whether or not to accept an offer to mediate, which may be at a very early stage of the litigation and sometimes at the pre-action stage, it may …

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