Non-Cooperation

Non-Cooperation in relation to the Technology and Construction Court

[rtbs name=”technology-and-construction-court”]

Generally

At the end of the trial, there may be costs arguments on the basis that one or more parties unreasonably refused to take part in Alternative Dispute Resolution. The Technology and Construction Court will determine such issues having regard to all the circumstances of the particular case. In Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576; [2004] 1 WLR 3002, the Technology and Construction Court of Appeal identified six factors that may be relevant to any such consideration: (a) the nature of the dispute; (b) the merits of the case; (c) the extent to which other settlement methods have been attempted; (d) whether the costs of the Alternative Dispute Resolution would be disproportionately high; (e) whether any delay in setting up and attending the Alternative Dispute Resolution would have been prejudicial; (f) whether the Alternative Dispute Resolution had a reasonable prospect of success. This case is the subject of extensive discussion in Civil Procedure, Volume 2, at Section 14. See also PGFII SA v OMFS Company 1 Ltd [2013] EWCA Civ 1288, [2014] BLR 1, particularly in relation to silence in the face of a request to mediate.

If an Alternative Dispute Resolution Order Has Been Made

the Technology and Construction Court will expect each party to co-operate fully with any Alternative Dispute Resolution procedure which takes place following an order of the court. If any other party considers that there has not been proper co-operation in relation to arrangements for mediation or any other Alternative Dispute Resolution Procedure, the complaint will be considered by the Technology and Construction Court and cost orders and/or other sanctions may be ordered against the defaulting party in consequence. However, nothing in this paragraph should be understood as modifying the rights of all parties to a mediation or any other Alternative Dispute Resolution Procedure to keep confidential all that is said or done in the course of that Alternative Dispute Resolution Procedure.