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HURST v LEEMING (2002) [2002] EWHC 1051 (Ch) Ch.D (Lightman J) 9/5/2002
CIVIL PROCEDURE - LEGAL PROFESSION - PROFESSIONAL NEGLIGENCE - ARBITRATION COSTS
: REFUSAL TO MEDIATE : JUSTIFICATION : COSTS ALREADY INCURRED : CHARACTER AND
ATTITUDE OF CLAIMANT : PROSPECTS OF SUCCESS OF MEDIATION A barrister was
justified in refusing to proceed to mediation in a professional negligence case
where the attitude and character of the claimant made it very unlikely that
mediation would succeed. The question of costs arising after the dismissal of an
action for professional negligence against a barrister ('L') in respect of his
conduct of proceedings concerning the dissolution of a solicitors' firm
(reported at Robert Alfred Hurst v Raymond Bryk & Ors (2000) 2 WLR 740). In
the ordinary way, L would have been entitled to his costs, but the claimant
('H') submitted that no such order should be made because both before and after
the commencement of these proceedings he invited L to proceed to mediation but L
refused. L's reasons for refusing to proceed to mediation were: (i) the legal
costs already incurred in meeting the allegations and the threat of proceedings;
(ii) the seriousness of the allegations of professional negligence; (iii) the
total lack of substance of the claims made; (iv) the lack of any real prospect
of a successful outcome to the mediation proceedings; and (v) the obsessive
character of H as revealed by his history of litigation and his response to the
explanation of L's conduct already provided. HELD: (1) Implicit in the
professional negligence pre-action protocol and explicit in the Court of Appeal
decisions, Dunnett v Railtrack (2002) 2 All ER 850 and Cowl & Ors v Plymouth
City Council (2002) 1 WLR 803, was the proposition that a party who refused to
proceed to mediation without good and sufficient reasons might be penalised for
that refusal and, most particularly, in respect of costs. (2) The fact that
heavy costs had already been incurred was not a justification for refusing to
mediate, but it was a factor to be taken into account in the mediation process.
(3) The allegation of professional negligence was not sufficient reason. (4) The
fact that a party believed he had a watertight case was no justification for
refusing mediation and nor was the fact that a full and detailed refutation of
the opposite party's case had already been supplied. (5) However, L was
justified, on the facts of this case, in taking the view that mediation was not
appropriate because it had no realistic prospect of success, by reason of the
character and attitude of H. Ordinarily a litigant would be taking a great risk
by refusing mediation on this ground. This was an exceptional decision and
reflected how seriously disturbed H's judgment was in relation to his case. (6)
L should not be penalised or deprived of his full entitlement to costs. Costs
awarded to L. H in person. Mr P Heslop QC and Mr A Twigger instructed by
Reynolds Porter Chamberlain for 