Ministry of Justice penalised for refusing to mediate

A prison officer who won a personal injury (PI) claim against the Ministry of Justice (MoJ) has been awarded part of his costs on the indemnity basis after beating a part 36 offer by a significant amount and the Ministry of Justice refused to engage in mediation.

The MoJ made an ADR pledge in 2001, and updated it in 2011 with a ‘Dispute Resolution Commitment’, requiring departments to use mediation, arbitration and conciliation.

According to a Lawtel report of Marsh v Ministry of Justice, the claimant’s letter of claim was sent in March 2012; in 2014, the claimant made a part 36 offer of £223,500 which was not taken up. He also offered mediation, but the MoJ said mediation was not open at that stage.

In June 2016, the court ordered that the parties attempt to settle by ADR. Four months later, the claimant made a part 36 offer of £180,000, and invited the defendant to engage in mediation, but the MoJ did not reply to either offer. The claimant was eventually awarded judgment of £286,000 earlier this year.

Lawtel said Lady Justice Thirwall observed that PI claims by an employee against an employer were “often amenable to ADR” and that this was a case where mediation was appropriate. The MoJ had argued there was a public policy element to the case that meant it was not, but the court failed to see how that was relevant in a PI case brought by an employee.

“The greater public context, if it existed, did not mean that the defendant was exempt from court orders. If a defendant did not want to engage in mediation for public policy reasons it had to be prepared to take the costs consequences.”

In relation to the 2014 part 36 offer, the MoJ maintained that, but for a change in the discount rate, the claimant would not have exceeded the judgment at trial.

The report said: “Although it was known that the Lord Chancellor had been reviewing the discount rate since 2012, it was not just for the part 36 costs consequences to follow the 2014 offer. However, the 2016 offer had been a genuine offer to settle. There was no injustice if the costs consequences of rule 36.17(4) were applied.”

Exclusive Access

Members only article

This article is exclusively for ACL members. Please log in to proceed, or click the button below to fill out an application from and become a part of our professional community.

Post details

Post type
Costs News
Published date
31 Aug 2017

Fill this form out to be notified when booking goes live.

Your Full Name
This field is for validation purposes and should be left unchanged.