Court Commentary.com Mixed reviews regarding this site "CourtCommentary.com is a mainly free site offering access to the latest judgments in the High Court and Court of Appeal. These are web-transcriptions of the full text of handed-down judgments collected by their reporter from the courts. There are free case listings for each judgment containing the editor’s summary of the “ratio” of the case, with details of judges, courtroom, parties and counsel.The majority of the listed judgments are free downloads and others are charged at £1.95. The reports are formatted for easy viewing on screen, and for printing, saving and editing. Based in London, CourtCommentary.com is a legal news and information service owned by Bear House Setters, a partnership specialising in electronic publishing. This is a very good source of current and recent judgments, with information usually appearing here before other free sources." Delia Venables Whereas: "Billed as an online site for 'independent news, comment and analysis on selected proceedings and judgments at the Royal Courts of Justice', CourtCommentary.com is a collection of 'articles' (full text judgments) with attached summary data and one paragraph analyses. It is difficult to assess the scope of this site since you can only browse by month or search by title and description. There is a full text search though "Not all articles have searchable full text. Full text of article only visible when article is downloaded." (This appears to be a severe limitation as, for example, searching for the common word 'defendant' only brought up one hit.) Some judgments are free to download (these appear to be those available on the court service site), some are for sale at £1.95 an article, some don't seem to be available either way. Searching is hit and miss and results are unclear. Clicking on Latest News leads to "There is no news available"; there is only one comment in the guestbook - dated Tuesday, 29 May 2001; and the Editorial Policy section is a long ramble. This site has some way to go." Infolaw
"Societe Internationale de Telecommunications Aeronautiques SC (Claimant) v (1)Wyatt Co (UK)Ltd(2)Watson Wyatt Partners(a firm) (3)Watson Wyatt Sarl (Defendants):(1)Wyatt Co (UK)Ltd (2)Watson Wyatt Partners (a firm)(3)Watson Wyatt Sarl (Part 20 Claimants) v Maxwll Bentley (a firm) (Part 20 Defendants) - ChD 14th Nov 2002
Hot tip! Protect yourself when you offer to mediate!
The profile of ADR (“Alternative Dispute Resolution”) has been raised since the inception of the rules which now govern our civil process system in England and Wales. ADR, especially in the form of mediation, is now viewed as viable and often cheaper alternative solution for parties engaged in a dispute, regardless of the nature of the dispute or the sums involved or the remedies sought. In the case of Cowl v Plymouth City Council [2001] All ER (D) 206 the court went so far as to say that even a case for judicial review (where a party seeks to challenge a decision affecting them made by a public body) was suitable for mediation.
The past year has seen the issue of ADR coming before the courts with increasing frequency. In previous law-now articles we have reported how the courts are encouraging parties to take part in ADR procedures and berating those who refused to co-operate. In Dunnett v Railtrack Plc [2002] 2 ALL ER 850, a costs penalty was made against a Railtrack in light of their refusal to attempt mediation brought about by their belief that Mrs Dunnett had a hopeless case.
This case involving Maxwell Batley and Watson Wyatt (Société International de Télécommunications Aeronautiques SC v Wyatt Co (UK) Ltd and others (Maxwell Batley) (a firm), (Part 20 Defendant) [2002] ALL ER (D) 189) brought before the High Court again the question of the extent of the obligation to attempt ADR.
FACTS The Claimant, Watson Wyatt, were defendants in an earlier claim (“the original action”) and brought a claim for a contribution to any damages award made against them against a firm of solicitors, Maxwell Batley. Watson Wyatt settled the original action through mediation but lost their contribution claim against Maxwell Batley. Watson Wyatt went back to court and argued that Maxwell Batley should be deprived of a proportion of their costs given that the firm had refused to accede to Watson Wyatt’s three suggestions that the dispute be referred to mediation.
HELD Mr Justice Park set out four main reasons for finding that Maxwell Batley should not have had to “pay” for refusing to mediate.
1. First, he found that Maxwell Batley were entitled to refuse the initial request to attend the mediation, which had already been scheduled with the claimants in the original action, given that they would have insufficient time to prepare for it. (This was despite the fact that the parties had been proceeding under the relevant pre-action protocol prior to the issue of the contribution proceedings).
2. The judge found that the only reason to initiate a mediation was to bring pressure to bear on Maxwell Batley to make a contribution to the settlement figure Watson Wyatt were attempting to agree with the claimants in the original action.
3. The judge questioned the intention behind Watson Wyatt’s attempt to involve Maxwell Batley in the mediation in the original action. He believed that their motive was to try to persuade Maxwell Batley to bridge the gap in the settlement offers that were being discussed between the parties to the original action.
4. The mediator had brought pressure to bear on Watson Wyatt and the Claimant to settle on the basis that they could pick up any shortfall from Maxwell Batley.
COMMENT This first instance decision certainly raises concerns about the court’s attitude to mediation, especially following the very positive messages given out in the Court of Appeal decisions in Hurst and Dunnett. Our view is that it sends out a warning sign that if you wish to protect yourself on when costs by relying on your offers to mediate, consider the following:-
Your letter suggesting mediation should include your thoughts on what you believe the mediation may achieve.
For example, it would be wise to point out that such a forum may not only afford an opportunity to explore and understand opposing parties’ respective cases but can present a chance to explore options for settlement other than one party simply writing a cheque. This will minimise any possibility of criticism from the Judge for “bullying”, as in this case.
Your letter proposing mediation should either be “open” or marked “without prejudice save as to costs”. This will ensure that the chain of correspondence about mediation can be shown to the court when costs are considered so that it can be demonstrated that your motives for suggesting that path are genuine.
The timing of the suggestions to mediate was the subject of criticism by the Judge. To avoid this, clearly set out why you believe that your proposal is appropriate at that particular time. Also, set out the information already provided to the other side that has allowed them to form a view on the strength of their case. This may counter any arguments that the party has insufficient information to be able to attend a mediation.
Be prepared that while the large majority of Judges are pro-mediation, some are not as commercial. However, if you follow our tips your efforts should be rewarded.
For further information please contact Amanda Wadey by telephone on +44(0)20 7367 2308 or by email at amanda.wadey@cmck.com Date: 06-Dec-2002
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