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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> BXB v Watch Tower and Bible Tract Society of Pennsylvannia & Ors [2020] EWHC 656 (QB) (11 March 2020) URL: http://www.bailii.org/ew/cases/EWHC/QB/2020/656.html Cite as: [2020] EWHC 656 (QB), [2020] Costs LR 341 |
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
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BXB |
Claimant |
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(1)WATCH TOWER AND BIBLE TRACT SOCIETY OF PENNSYLVANNIA (2) TRUSTEES OF THE BARRY CONGREATION OF JEHOVA'S WITNESSES |
Defendants |
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Catherine Foster (instructed by Legal Department Watch Tower) for the First and Second Defendants
Hearing dates: 25 - 29 November & 10 December 2019
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Crown Copyright ©
Mr Justice Chamberlain :
'At all stages the parties must consider settling this litigation by any means of Alternative Dispute Resolution (including Mediation); any party not engaging in such means proposed by another must serve a witness statement giving reasons within 21 days of that proposal; such witness statement must not be shown to the trial judge until questions of costs arise.'
Despite that, Mr Counsell submits, the Defendants did nothing even to try to explore settlement other than to suggest (in a 'without prejudice save as to costs' conversation on 17 January 2019) a 'global offer' to settle the Claimant's case and those of CXC and DXD, who had also been sexually assaulted by Mark Sewell and were represented by the same solicitors. The Claimant's solicitors made clear in that conversation, and reiterated in an email on 22 January 2019, that a global offer would give rise to a conflict of interest for them and invited the Defendants to make separate offers. In response, on 6 February 2019, the Defendants offered a joint settlement meeting 'with your clients CXC and DXD only'. The Claimant's solicitors asked whether the Defendants would be amenable to a similar meeting in BXB's case. The response, on 25 February 2019, was that 'we have no authority to negotiate settlement of BXB's claim at the JSM', but said that if there were proposals in that case they would be considered. There was then a round table meeting about CXC's and DXD's cases in March 2019, but no further discussion of the Claimant's until she made her Part 36 offer to accept £62,750 on 9 July 2019. The Defendants rejected that offer without giving a reason on 31 July 2019. The Claimants made a further Part 36 offer on 31 October 2019, this time to accept £25,000. This was also rejected – again without giving a reason – on 7 November 2019.
(a) Whether to order that costs be assessed on the standard or the indemnity basis is for the discretion of the judge, having regard to the conduct of the parties and the circumstances of the case. But an award of indemnity costs requires something that 'takes the case outside the norm': Excalibur Ventures LLC v Texas Keystone Inc. (No. 2) [2017] 1 WLR 2221, [21].(b) An unreasonable refusal to engage in ADR may justify an award of indemnity costs to a claimant, even where the claimant recovers very substantially less than originally claimed: Garritt-Critchley v Ronnan [2014] EWHC 1774 (HHJ Waksman QC). One reason for this is that '[p]arties don't know whether in truth they are too far apart unless they sit down and explore settlement': ibid, [22].
(c) Silence in the face of an invitation to participate in ADR is, as a general rule, of itself unreasonable, regardless whether an outright refusal, or a refusal to engage in the type of ADR requested, or to do so at the time requested, might have been justified by the identification of reasonable grounds: PGF II SA v OMFS Company 1 Ltd [2013] EWCA Civ 1288, [2014] 1 WLR 1386, [34] (Briggs LJ). This is in part because 'a failure to provide reasons for a refusal is destructive of the real objective of the encouragement to parties to consider and discuss ADR, in short to engage with the ADR process': ibid, [37].
(d) However, a finding that a party has unreasonably refused even to engage in discussion about ADR produces no automatic results in terms of a cost penalty. It is simply an aspect of the parties' conduct which must be addressed in a wider balancing exercise: ibid: [51]; Gore v Naheed [2017] EWCA Civ 369, [2017] 3 Costs LR 509, [49] (Patten LJ).