The High Court awarded three plaintiffs 95% of their party-and-party costs for two interlocutory applications in a dispute concerning an intestate estate. Mr Justice Kennedy reduced the award by 5%, mainly because the plaintiffs’ solicitors had not complied with statutory mediation requirements before proceedings began, and also because the statement of claim was delivered late. Payment of the costs was stayed pending determination of the proceedings.
The costs judgment, delivered on 5 June 2024, followed an earlier decision on the applications. That decision restrained the dissipation of part of the proceeds from the sale of the family home and dismissed the defendant’s application to strike out the claim. The plaintiffs had sought broader interim relief, but the court found that they had largely succeeded on both applications and were presumptively entitled to their costs.
The judge found that the plaintiffs’ solicitors had not filed the statutory declaration required by section 14 of the Mediation Act 2017 when issuing the proceedings, and there was no suggestion the required advice had been given beforehand. The court paused the hearing to allow compliance. After an adjournment, plaintiffs’ counsel confirmed compliance and said the plaintiffs were willing in principle to mediate, though the sides differed on how that would work.
The plaintiffs argued that the proceedings were urgent because of a risk that sale proceeds could be dissipated, and that the defendant was unlikely to engage in mediation. The judge accepted the urgency but concluded there had been time to give the required advice while drafting the proceedings. He held that the statutory duty was to advise clients to consider mediation, not to require them to mediate. The failure to comply was relevant to costs as conduct before and during proceedings, even though provisions concerning unreasonable refusal to attend mediation did not apply.
The judge also considered the plaintiffs’ admitted delay in delivering their statement of claim. He found no satisfactory explanation and said the omission had complicated the court’s consideration of whether the claim was arguable. The defendant had also argued that costs should be reserved until trial, where factual disputes about disclaimers and limitation might be resolved. The judge declined, finding the applications resulted from the defendant’s failure to engage and that the strike-out application had little chance of success once the position on the disclaimers was clarified.
The court ordered the plaintiffs to receive 95% of their party-and-party costs on each application, with payment stayed until the proceedings are determined. The 5% reduction reflected the defaults, primarily the section 14 failure. The judgment also encouraged both sides to consider mediation or negotiation, without making a direction to do so.