AB & Ors v British Coal Corporation

An agreement containing a detailed procedure for individual disputes creates a self-contained code. A provision allowing disputes affecting a group of claims to be referred to the supervising judge concerns generic issues and cannot be used to replace the individual dispute procedure with merits-based judicial determination. Once mediation is the only remaining means of resolving an individual dispute within the scheme, consent to mediation must be approached liberally. It may be unreasonable to withhold consent merely because the claim appears to require cross-examination. Clear contractual and court-imposed time limits for requesting mediation should not ordinarily be extended where the claim has been allowed to lapse.

The judgment concerned the run-off of the Vibrations White Finger Scheme. The court considered how unresolved individual services-cost claims should be dealt with under the agreement and its dispute-resolution provisions.

The claimants argued that the supervising judge could determine individual claims on their merits under the provision dealing with disputes affecting groups of claims. They also argued that consent to mediation had been unreasonably withheld in some cases and that the time limit for requesting mediation should be extended. The central issues were the proper construction of the agreement, the scope of the court’s case-management powers, and the circumstances in which consent to mediation could be withheld.

1. Construction of the dispute procedure. The individual dispute procedure in Schedule 13.1 was a self-contained and complete code. Where an individual dispute remained unresolved, the claimant’s remedy under paragraph 4 was to pursue proceedings outside the agreement. Paragraph 3.2 dealt principally with disputes raising issues affecting a group of claims and permitted the supervising judge to resolve generic issues. It did not permit the detailed individual-claims procedure to be displaced by merits-based determination of individual claims.
2. Case-management powers. The court’s broader powers under the CPR did not justify determining individual claims on their merits. The court had to consider the orderly winding down of the scheme, the use of public funds and the resources required for individual litigation. There was little difference in cost and court time between resolving such claims under the agreement and requiring ordinary litigation at common law.
3. Mediation. The restriction on merits-based judicial determination increased the importance of mediation, which was the final mechanism available within the agreement for resolving individual disputes. The Department therefore had to adopt a more liberal attitude to requests for mediation. Where a claim involved inconsistencies requiring discussion, debate or mediated negotiation, it could be unreasonable to withhold consent merely because the Department considered cross-examination necessary. Mediation was sufficiently flexible to address such disputes.
4. Time limit. The court refused to extend the clear cut-off period for requesting mediation. Claimants and their representatives should have been aware that mediation was available, and there was no good reason to revive claims allowed to lapse. Such claimants remained free to leave matters as they stood or pursue common-law proceedings.