Ali & Anor v Channel 5 Broadcast Ltd [2018] EWHC 840 (Ch)

In this case, the Claimants did not accept mediation when it was first suggested, noting that the Defendant's response to the letter of claim indicated an intention robustly to defend the claim.  The Claimants wrote:

"In these circumstances, with fundamental issues of law and regulation in dispute, we do not consider ADR would be productive or appropriate at this stage in proceedings but our clients will be prepared to keep under review the option of ADR once these substantive issues of law and regulation have been addressed further."

The Defendant subsequently responded to the above in the following manner:

"Your clients' claim for injunctive relief to prevent further broadcasts is perfectly suitable for Alternative Dispute Resolution and there is no reason for that possibility not to be properly pursued, especially in view of the Pre-action Protocol."

The Claimants responded once more stating that:

"These circumstances do not appear conducive to ADR, particularly at a point where there [is] no acceptance of wrongdoing on your part.  However, we remain fully prepared to engage with ADR at a suitable time and invite proposals for the same."

The Defendant failed to respond to this invitation until over a year later when the Defendant suggested mediation again.  This suggestion was accepted by the Claimants, the mediation took place but was unsuccessful. However, the Claimants were successful at trial.

In his judgment on costs Mr Justice Arnold found in the Claimants favour finding that in his judgment the Claimants did not refuse to engage in ADR.  He went on (at paragraph 35):

"While it is true to say that the Claimants did not embrace Channel 5's first suggestion of ADR in its letter dated 29 February 2016, they did say in Hamlins' letter dated 10 June 2016 that they would keep it under review. Moreover, the Claimants' response to Channel 5's second suggestion of ADR (which on its face was confined to the question of an injunction) in its letter dated 14 June 2016 in Hamlins' letter dated 3 August 2016 was to state that they were fully prepared to engage in ADR at a suitable time and to invite proposals. Channel 5 did not propose mediation (or any other form of ADR) until 28 November 2017. When Channel 5 proposed mediation, the Claimants promptly agreed."

In my view I think that the Claimants were lucky with this decision because and that, perhaps, a different judge, a different day might have resulted in a different outcome?