Gregor Fisken Ltd v Carl [2021] EWCA Civ 792 (28 May 2021)

Court of Appeal decision stating that the parties should have engaged the services of a skilled mediator early in the dispute.  When giving permission to appeal the judge had observed that: "The case does not fall within the [Court of Appeal] pilot scheme for mediation, but the parties are strongly encouraged to consider attempting to resolve their dispute by mediation."

The parties had not taken up this suggestion:

"117. When we asked Mr Shepherd what steps had been taken in the light of this observation, his answer was succinct. He told us that the answer was "none". When we asked Mr Hooper the same question, he told us that in view of Mr Carl's failure to respond to settlement offers in the past (including a Part 36 offer which had been beaten at the trial), it was not thought worthwhile to pursue this suggestion. This is highly unsatisfactory. Strong encouragement from the court to consider mediation merits careful consideration and is not simply to be ignored or rejected out of hand. Also unsatisfactory is the way in which Mr Carl's case has changed during the hearing of the appeal. I would invite submissions as to the consequences which should follow."

It will be interesting to see what costs consequences flow from this failure to engage in mediation.