In the Media

CoA judge raps defendant for spurning mediation

PUBLISHED May 17, 2012

Thursday 17 May 2012 by John Hyde

A Court of Appeal judge has criticised a defendant for rejecting mediation offered at a previous hearing - warning it will be a costly decision.

Lord Justice Longmore said it was a 'great pity' that appliance supplier Indesit, instructed by Plexus Solicitors, had not pursued the option of mediation as advised by Lord Justice Toulson in a personal injury case. Indesit had successfully defended a personal injury claim by employee Ali Ghaith, but Ghaith was subsequently given permission to appeal.

It was then that the appeal judge encouraged Indesit to pursue the option of mediation.

The company opted not to follow that advice on the grounds that costs had already exceeded the likely amount at issue. In a judgment given today, LJ Longmore said this was an 'inadequate response' that will 'inevitably result in a substantial increase in costs'.

He added: 'Indesit's reaction is all too frequent and the court has, since April of this year, decided that any claim for less than £100,000 will be the subject of compulsory mediation.

'It is devoutly to be hoped that such mediation will mean that these comparatively small claims will not have to be adjudicated by this court so frequently in future.'

His endorsement of mediation was backed by another member of the Court of Appeal panel, Lord Justice Ward, who said that 'if [both parties] have any sense, they will heed a recommendation to mediate'.

He explained that the mediator had a 'canny knack of transforming the intractable into the possible' and that mediation should not be spurned when it is offered.

Ghaith, who had aggravated a back injury while lifting washing machine parts for a stock-take in 2007, sued his employer for personal injury, alleging a breach of manual handling regulations. It was agreed that liability (if any) would be no more than £60,000 because of the nature of the injury.

The claim had failed in the civil court on the grounds there was nothing more that could have been done on the part of the defendant.

But after Ghaith was given permission to appeal, LJ Longmore concluded he would allow the appeal and sent the matter to the County Court for an assessment of quantum.