The Price of Silence

Hot from the bench of the Court of Appeal is Northamber PLC v Genee World Ltd & Ors [2024] EWCA Civ 428 a breach of exclusivity agreement/ inducing breach of contract case that has a interesting sidebar on mediation/costs.

Ignoring an offer to mediate can be expensive

A Brick Wall
Stonewalling is not a good response to an offer to mediate

Key points that might interest ADR practitioners:

  • Silence is still not golden (Paragraph 103)….

Where LJ Arnold (with a withering “it is almost 20 years since….”) reaffirms the Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576, concept that an unreasonable refusal to mediate is in and of itself unreasonable conduct and the PGF II SA v OMFS 1 Ltd [2013] EWCA Civ 1288 position that silence in relation to an offer is the same.

It’s a neatly put summary by an eminent judge and just peevish enough to be the basis of my new standard paragraph on why the other side should mediate.

  • ….and it’ll cost you (Paragraph 107)

How much will continue to be case specific but as an approach Arnold LJ felt the “correct response would be to impose a modest, but not insignificant, costs penalty by increasing ……costs recovery by an additional 5% to 75%”

All in all…

It’s a further example of the modern trend of near-compulsory mediation with a example of a broad brush punishment on the costs front.