Monthly Archives: October 2014

REUTERS | Stefan Wermuth
October 8, 2014

TCC decides unreasonable refusal to mediate but for other reasons imposes no costs sanction

In Northrop Grumman Mission Systems Europe Ltd v BAE Systems (Al Diriyah C4i) Ltd, BAE successfully argued that its interpretation of a licensing agreement was correct. Northrop then argued that BAE’s costs should be reduced by 50% because BAE had unreasonably refused to mediate. While Ramsey J found that BAE had unreasonably refused to mediate, for other reasons, the court awarded BAE its costs on the standard basis without any reduction.

This decision is important because:

  • It re-emphasises the danger of refusing to mediate.
  • It directs parties (again) to the guidance in the ADR Handbook.
  • It says that when considering the “prospects of success” of an ADR process, the court should not just look at the positions taken by the parties.

Continue reading →

REUTERS | Sean Yong
October 8, 2014

Mitigation and the reasonableness of a settlement agreement

In Rentokil Initial 1927 plc v Goodman Derrick LLP, the court revisited the issue of mitigation which I commented on in August. This time the context was somewhat different as the point arose in relation to a solicitor’s negligence claim where the claimant had resolved remedial arbitration proceedings that it had launched, seeking to recoup its losses due to alleged negligence in drafting a sale agreement. Indeed, it spent some £600,000 on costs in the arbitration, which it claimed as damages. Notwithstanding this expenditure, the arbitration was compromised, apparently as a commercial deal without regard to the merits of either party’s case. Continue reading →

REUTERS | Aly Song
October 7, 2014

Scope of jurisdiction: Court of Appeal decides expert’s determination invalid

The RICS recently undertook a rigorous review of its adjudication panel, with some members leaving and a handful of high quality new members joining. On speaking to one of those new members, he commented that “this adjudication lark isn’t as easy as it looks, is it?”. Quite.

One of the most difficult areas concerns jurisdiction, not only because it can concern complex issues, but also because the adjudicator has to determine the issue of his jurisdiction quickly so that the parties know whether the adjudication is proceeding and, if it is, the scope of the adjudicator’s jurisdiction. Continue reading →

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