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Dunnett v Railtrack 22 February 2002 Brooke, Robert Walker, Sedley LJJ
1.   This appeal from the Cardiff County Court concerned a claim arising from the death of three horses which had strayed through a gate to an accommodation crossing over the main London to Swansea railway line.
2.   The claimant/appellant appealed as a litigant in person, and in granting permission to appeal, Schiemann LJ strongly encouraged an attempt at alternative dispute resolution to settle the dispute. The defendants turned down the suggestion pointblank. When the appeal was dismissed the defendants applied for their costs, relying on, among other things, a small Part 36 offer made in connection with the appeal. The Court of Appeal directed that there should be no order as to costs. In an ex tempore judgment Brooke LJ, with whom Robert Walker and Sedley JJ agreed, referred to CPR 1.4(1) and 1.4(b) and the paragraph in the White Book note 1.4.12 which reads:
  
   "The encouragement and facilitating of ADR by the court is an aspect of active case management which in turn is an aspect of achieving the overriding objective. The parties have a duty to help the court in furthering that objective and therefore they have a duty to consider seriously the possibility of ADR procedures being utilised for the purpose of resolving their claim or particular issues when encouraged by the court to do so. The discharge of the parties' duties in this respect may be relevant to the question of costs because when exercising its discretion as to costs the court must have regard to all the circumstances, including the conduct of all the parties (CPR 44.3(4), see too 44.5)."
3.   Brooke LJ observed that a skilled mediator might have been able to achieve an amicable solution to the dispute by means other than encouraging the payment of money.
4.   Incidentally, each member of the court subsequently received a letter from the claimant, who appeared by pro bono counsel at the hearing, which included the following passage:
  
   "In finishing I would like to reinforce your own knowledge and experience of the Alternative Dispute Resolution. If at any point Railtrack would have said that they regretted what had happened, we would have dropped the whole matter.
   This case was never about money..."