Crawford, R (On the Application Of) v The University of Newcastle Upon Tyne

The unsuccessful party will ordinarily pay the successful party’s costs. Departure from that rule requires consideration of all the circumstances, including conduct before and during proceedings.

In assessing an alleged unreasonable refusal to mediate, the court should consider the nature and merits of the dispute, other settlement methods, proportionality of ADR costs, delay and the reasonable prospects of success. The factors are non-exclusive, and the burden lies on the unsuccessful party. Silence following an ADR invitation may generally be unreasonable, but it does not automatically produce a costs penalty. In public law disputes, an ombudsman complaint may itself constitute ADR. The court must assess the whole context, including whether further mediation could realistically have avoided or narrowed the litigation.

The claimant challenged the defendant university’s decision concerning his medical examination results and the handling of his internal appeal. The substantive claim was dismissed in an earlier judgment, [2014] EWHC 162 (Admin).

The parties disputed costs. The claimant argued that the defendant had unreasonably failed to mediate, had succeeded only in part, and had contributed to the litigation through errors in its examination handbook and appeal procedure. The defendant relied on the general rule that the unsuccessful party pays the successful party’s costs, together with the claimant’s conduct and failure to comply with pre-action requirements.

The central issue was whether the circumstances justified departing from that general rule.

1. The claimant was the unsuccessful party and the defendant was, in substance, the successful party. The appropriate order was that the claimant pay the defendant’s costs, subject to detailed assessment if not agreed.

2. Under CPR Part 44.2, the court has a broad discretion, but the general rule is that the unsuccessful party pays the successful party’s costs. A different order requires consideration of all the circumstances, including conduct, partial success and offers to settle.

3. The claimant failed to establish an unreasonable refusal to mediate. The principles in Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576; [2004] 1 WLR 3002 require the court to consider the nature of the dispute, its merits, other settlement methods, the cost and timing of ADR, and whether ADR had a reasonable prospect of success. The list is non-exclusive. The burden lies on the unsuccessful party.

4. An ombudsman process may constitute ADR, particularly in a public law dispute. The claimant’s complaint to the Office of the Independent Adjudicator concerned substantially the same issues as the judicial review proceedings, and the defendant had actively engaged in that process. Further mediation was therefore unlikely to avoid or narrow the litigation. The claimant’s proposed outcome, a further exceptional examination resit, also had no reasonable prospect of success on the evidence.

5. The defendant’s failure to respond substantively to the mediation invitations was discourteous. However, PGF II SA v OMFS Company 1 Limited [2013] EWCA Civ 1288; [2014] BLR 1 establishes only that silence in response to an ADR invitation is generally unreasonable, subject to exceptions, and that such conduct does not automatically lead to a costs sanction. In the circumstances, the silence did not justify depriving the defendant of its costs.

6. The defendant’s success on the substantive interpretation issue and on the principal appeal-procedure arguments made it the successful party, despite one procedural breach and findings against it on delay and an unresolved alternative-remedy point. The handbook’s ambiguity and the procedural breach did not justify a different order, particularly since the claimant suffered no relevant prejudice.

7. The claimant’s failure to accept the defendant’s offer to bear its own costs if the proceedings were discontinued supported, but did not extend beyond, the general costs rule. Failure to comply with the Pre-Action Protocol was relevant but carried little weight. No evidence established impecuniosity.

The judgment itself records that the substantive judicial review claim had previously been dismissed in [2014] EWHC 162 (Admin). This judgment determined the consequential costs dispute.