Halsey v Milton Keynes General NHS Trust
[2004] EWCA Civ 576
Independent editorial summary — not the official judgment. Read the full judgment via the source link.
Ratio Decidendi
The court has no power to compel unwilling parties to mediate, because to do so would impose an unacceptable obstruction on their right of access to the court under Article 6 ECHR; the court's role is to encourage ADR, not compel it, though an unreasonable refusal to mediate may still be penalised in costs, with the burden of proving unreasonableness on the party seeking the sanction.
Facts
Lilian Halsey brought a claim under the Fatal Accidents Act 1976 against Milton Keynes General NHS Trust following the death of her husband, Bert Halsey, an 83-year-old patient, alleging that a nasogastric feeding tube had been incorrectly inserted so that it directed liquid food into his lung rather than his stomach. The claim was dismissed at trial, but Mrs Halsey argued the Trust should nonetheless lose its costs because it had refused several invitations to mediate the dispute.
Judgment Summary
The Court of Appeal held that a costs sanction for refusing ADR is an exception to the general rule that costs follow the event, and that the burden is on the unsuccessful party to show the refusal was unreasonable. It set out a non-exhaustive list of factors relevant to unreasonableness, including whether the ADR had a reasonable prospect of success. On the facts, the claimant came nowhere near proving that mediation had a reasonable prospect of success, so the Trust's refusal to mediate was not unreasonable and it kept its costs.
Key Quotes
"To oblige truly unwilling parties to refer their disputes to mediation would be to impose an unacceptable obstruction on their right of access to the court."
— Dyson LJ(verbatim, verified against the judgment)
Subsequent Treatment
Churchill v Merthyr Tydfil CBC [2023] revisited whether courts can order mediation.
What To Do Next
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