Zenith Personal Injury Current Awareness

FAIL TO ENGAGE IN ADR AT YOUR PERIL

5 September 2017

Justin Crossley

Marsh v Ministry of Justice (2017) QBD is a timely reminder of the need for parties to consider Alternative Dispute Resolution (ADR) in personal injury claims.

The Claimant, a Prison Officer, succeeded in a claim for personal injury against his employer, the Ministry of Justice.  Having succeeded in the claim Thirlwall LJ heard arguments regarding costs.

The Claimant’s injury was psychiatric in nature and arose following his being suspended in order to investigate serious conduct allegations which were later found to be unproved.

The Defendant’s approach to the claim was generally unsatisfactory.  It failed to respond to the detailed letter of claim.  The Claimant made a Part 36 offer of £223,500 that was not responded to.  The Claimant proposed mediation, but the Defendant said that mediation was not appropriate.

In June 2016 the Court ordered the parties attempt to settle by ADR .  In October 2016 the Claimant made a reduced Part 36 offer and invited the Defendant to engage in mediation.  The Defendant did not engage in mediation nor respond to the Part 36 offer.  The Defendant made an application for disclosure of documents from the Police which the Court deemed an expensive waste of time.  The disclosure sought was found not to be relevant to matters in the Claimant’s claim but rather used as a means of attacking the Claimant.

The Claimant recovered circa £286,000 at trial, although he lost on a number of significant issues.  The Claimant had beaten both his Part 36 offers by some margin.  However, without the change in the discount rate between trial and judgment he would have recovered slightly less than his first offer, although exceeded his second offer.

In her judgment Thirlwall LJ was extremely critical of the Defendant’s approach to litigation, in particular the application for third party disclosure.

With regard to ADR the Judge rejected the Defendant’s contention that the decision not to engage in the process was justified. The Defendant sought to argue that many public bodies were at the time under investigation in respect of allegations of abuse.  The Judge was deeply unimpressed by this, suggesting if the Defendant did not wish to engage in mediation for public policy reasons it must be prepared to take the cost consequences of the approach.  She stressed that there was nothing out of the ordinary in this claim and that personal injury claims between an employee and an employer were eminently suitable for mediation/ADR.  In asserting this she was repeating the Court of Appeals observations in the case of Ghaith v Indesit Co UK Limited [2012] EWCA Civ 642.

In determining other issues the Judge concluded that it would be unjust for the first Part 36 offer to take effect given that it only did so because of the change in the discount rate.  She did not accept the Claimant’s argument that such a change was simply a risk of litigation.  However, she was critical of the way the Defendant had pleaded its case, particularly in maintaining allegations which it could not substantiate.  She found that there was no reason why the normal cost sanctions should not flow from the Claimant beating its second Part 36 offer.  Her decision to order  indemnity costs was based upon both the Part 36 provisions and the Defendant’s conduct, which whilst not expressly stated, by inference included its failure to engage in ADR.

Current Awareness

By the Personal Injury team