Part 36 Offers And Refusal To Mediate

The following two quotes from Lord Justice Rix (in Rolf v De Guerin [2011] EWCA Civ 78 and Epsom College v Pierse Contracting Southern Limited [2011] EWCA Civ 144 respectively) neatly encapsulate the present concerns about costs in litigation:

"This is an appeal solely about costs. It is also a sad case about lost opportunities for mediation. It demonstrates, in a particular class of dispute, how wasteful and destructive litigation can be."

"I am concerned about the costs which have arisen in this case..... I am also concerned that this is another case in which the existence of a conditional fee agreement has made it practically impossible to obtain a settlement."

Defendants, of course, are only too aware of the costs risks of litigation. Even at a reasonably early stage the claimant's costs can include CFA uplifts, front loaded experts' fees and ATE insurance premiums; costs regularly spiral well beyond the damages claimed. Settlement options must invariably