10 Cases That Show Why Litigation Should Sometimes Be the Last Resort

The courts themselves have repeatedly expressed frustration about disputes which could, and perhaps should, have been resolved in another way. Here are ten real cases which illustrate the point.

There are cases which have to be tried.

Sometimes an important point of law requires determination. Sometimes urgent relief is required. Sometimes the parties’ accounts are irreconcilable and only a judge can decide what happened.

But there are other cases where the most striking feature of the eventual judgment is not who won.

It is the amount of time, money and energy which was spent getting there.

The courts themselves have repeatedly expressed frustration about disputes which could, and perhaps should, have been resolved in another way.

Here are ten real cases which illustrate the point.

1. *Oliver v Symons* [2012] EWCA Civ 267 — £150,000 over little more than 100 metres

This was a dispute between neighbours concerning the extent of a right of way over farmland in County Durham.

The disputed stretch was little more than 100 metres long.

By the time the matter reached the Court of Appeal, the appellants alone had incurred costs of approximately £150,000.

Elias LJ regarded those costs as enormous and wholly disproportionate to the practical importance of the dispute.

His assessment could hardly have been clearer:

“This is a case which was crying out for mediation.”

He added that it ought never to have come near a court.

Ward LJ similarly warned of the particular danger of neighbour disputes: passions become aroused, positions become entrenched and the parties can emerge considerably poorer regardless of who technically wins.

There can hardly be a better illustration of the difference between winning litigation and achieving a satisfactory outcome.

2. *Burchell v Bullard* [2005] EWCA Civ 358 — a £5,000 judgment obtained at a cost of about £185,000

This case arose from building works.

The builder claimed unpaid fees and the homeowners counterclaimed in respect of alleged defects.

ADR had been proposed before proceedings, including mediation with a mediator experienced in construction disputes. It did not happen.

The litigation continued.

Eventually, only about £5,000 was to pass from the defendants to the claimant.

Ward LJ calculated the overall financial consequences.

A judgment for approximately £5,000 had effectively been procured at a cost to the parties of about £185,000.

His reaction was memorable:

“Is that not horrific?”

Quite.

It also demonstrates why the suggestion that a dispute is “too technical” for mediation can be misconceived.

Technical disputes are mediated every day. Experts can attend. Technical evidence can be tested. Commercial solutions can be explored.

The alternative in this case was a £185,000 route to a £5,000 result.

3. *Rolf v De Guerin* [2011] EWCA Civ 78 — four days of evidence and an award of £2,500

This was another building dispute, involving construction of a garage and loft at a residential property.

Attempts were made to persuade the defendant to mediate.

The case instead proceeded to a four-day trial.

The claimant ultimately recovered £2,500.

When the case reached the Court of Appeal on costs, Rix LJ began his judgment by describing it as:

“a sad case about lost opportunities for mediation.”

He said it demonstrated how wasteful and destructive litigation could be.

The case is particularly interesting because one explanation advanced for not mediating was, in substance, that the defendant wanted his day in court.

There is nothing inherently wrong with wanting a court to determine your rights.

But parties should understand the potential price of that decision.

4. *Thakkar v Patel* [2017] EWCA Civ 117 — when the cost of fighting dwarfs the gap between the parties

Thakkar concerned a commercial property dispute involving dilapidations and water damage.

It has subsequently become one of the best-known authorities concerning failure properly to engage with proposals for mediation.

The parties’ settlement positions became relatively close compared with the cost and risk of continuing the litigation.

Yet the proposed mediation did not take place and substantial further costs were incurred.

The Court of Appeal was highly critical of the approach to mediation.

The important lesson is not that litigants must necessarily accept whatever is proposed at a mediation.

They do not.

It is that when the economic distance between the parties is becoming small in comparison with the cost of continuing, somebody should stop looking exclusively at the pleadings and start looking at the arithmetic.

5. *Bradley v Heslin* [2014] EWHC 3267 (Ch) — when neighbours may need saving from themselves

This was another dispute between neighbours, involving rights over an accessway.

Norris J used the case to make broader observations about the nature of neighbour and boundary disputes.

Such cases have a particular capacity to become personal. What starts as a disagreement over land or access becomes a dispute about conduct, principle and ultimately winning.

The judge considered mediation particularly capable of producing outcomes satisfactory to the parties in terms of cost, speed, resolution and future relationships.

Most memorably, he suggested that people embroiled in such litigation sometimes needed:

“saving from themselves.”

It sounds dramatic.

Anyone who has acted in a bitter boundary dispute will understand the point.

Once £20,000 has been spent, spending another £20,000 can perversely begin to feel more rational than compromising.

It isn’t.

The first £20,000 has gone either way.

6. *Faidi v Elliot Corporation* [2012] EWCA Civ 287 — sometimes the sensible solution isn’t a legal remedy

This dispute arose between the owners of flats and concerned flooring and noise.

It illustrates a fundamental advantage of mediation.

A court is constrained by the legal rights asserted and the remedies available to it.

The parties are not.

Neighbours can agree arrangements concerning carpets, flooring, acoustic insulation, access, working practices, maintenance or any number of practical matters.

Commercial parties can agree future business.

Employers and employees can agree references.

Families can agree arrangements which preserve relationships.

A mediated outcome does not have to correspond with the order a judge would have made.

Indeed, that may be its greatest advantage.

7. *Pennock v Hodgson* [2010] EWCA Civ 873 — the boundary may be determined; the relationship may not survive

This boundary dispute reached the Court of Appeal.

Mediation had been suggested but was not taken up.

Mummery LJ expressly regretted that fact.

He made the important point that in many boundary disputes both parties ultimately lose something which might have been preserved through compromise.

That is the difficulty with neighbour litigation.

A judge can decide where a boundary lies.

A judge cannot necessarily create an arrangement under which the neighbours can comfortably live next door to one another for the next twenty years.

A mediator can explore both.

8. *Stoney-Andersen v Abbas* [2023] EWHC 2964 (Ch) — you can win the case and still suffer on costs

This probate dispute provides an important answer to a common objection to mediation:

“Why should we mediate? We are going to win.”

The claimant did win.

But ADR had been proposed and she had failed properly to engage with those proposals.

HHJ Paul Matthews considered that the dispute had cried out for mediation from the outset.

That conduct mattered when he dealt with costs.

The claimant ultimately recovered only 50% of her costs.

The case demonstrates a crucial point.

Mediation is not merely for parties with weak cases.

A party can be legally right and still make poor litigation decisions.

9. *PGF II SA v OMFS Company 1 Ltd* [2013] EWCA Civ 1288 — ignoring an invitation to mediate can itself have consequences

What happens if the other side proposes mediation and you simply don’t answer?

That was the issue which eventually reached the Court of Appeal in PGF II.

The claimant’s solicitors sent a serious and carefully formulated invitation to mediate.

The defendant did not respond.

The invitation was subsequently repeated.

Again, there was no substantive response.

The substantive dispute eventually settled following acceptance of a Part 36 offer, but the parties remained at odds about costs.

The Court of Appeal held that silence in response to an invitation to participate in ADR would, as a general rule, itself be unreasonable.

The lesson for litigators is straightforward.

You do not necessarily have to agree to every proposal for mediation.

But ignoring it is dangerous.

Engage with the proposal. Consider it. If there is a proper reason for declining it, explain that reason.

Silence is not a strategy.

10. *Churchill v Merthyr Tydfil County Borough Council* [2023] EWCA Civ 1416 — the question is no longer simply whether parties want ADR

And finally, Churchill.

This was not a case about an absurdly expensive fence or driveway. It is included because it represents an important development in the story told by the preceding cases.

For many years Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576 was frequently cited for the proposition that compelling unwilling parties to mediate could interfere with their right of access to the court.

In Churchill, the Court of Appeal reconsidered the position.

The Master of the Rolls concluded that, as a matter of law, a court can stay existing proceedings for, or order parties to engage in, a non-court dispute resolution process.

The procedural landscape has subsequently moved further still. The Civil Procedure Rules now expressly incorporate ADR into the court’s case-management functions.

That is quite a journey.

The judicial conversation has moved from:

“Have you considered mediation?”

to:

“Why haven’t you mediated?”

and now, potentially:

“You are going to engage in ADR.”

What do these cases tell us?

There is an obvious temptation to treat mediation cases as being principally about costs sanctions.

That misses the larger point.

Look at what actually happened in some of these disputes.

A judgment of about £5,000 was obtained after expenditure of approximately £185,000.

A dispute over little more than 100 metres of track generated around £150,000 in costs for one side alone.

A homeowner and builder spent four days giving evidence in litigation which ultimately produced damages of £2,500.

Those are not simply examples of parties being legally wrong.

They are examples of litigation becoming disproportionate to the problem it was supposed to solve.

And that can happen remarkably easily.

Mediation asks a different question

Litigation principally asks:

“Who is legally right?”

Mediation can ask:

“What outcome makes most sense from where we are now?”

Those are not the same question.

The second can take account of legal merits, but also costs, risk, delay, relationships, confidentiality, commercial considerations, future behaviour and outcomes which no judge has jurisdiction to impose.

Sometimes the answer will be that no acceptable compromise exists.

The court is there for precisely that reason.

But before spending £185,000 to establish an entitlement worth £5,000, it is surely worth spending a day finding out.

Our pages on civil and commercial mediation, property disputes and probate and inheritance disputes explain how we approach disputes of the kinds described above, and our fees page sets out what a day’s mediation typically costs.

About the author

Peter Causton is a barrister, civil and commercial mediator and Director of ProMediate (UK) Limited.

If you are involved in a dispute and would like to explore mediation, start a mediation enquiry or contact ProMediate.

This article provides general information only and is not legal advice.