On 11 May, 2004, the Court of Appeal handed down its eagerly awaited judgment in the conjoined appeals of Halsey v Milton Keynes NHS Trust and Steel v Joy and Halliday. The court was given the opportunity to look at when it might order costs against a successful party who refused to mediate at the invitation of the unsuccessful party.
In Halsey, a clinical negligence claim, the claimant’s solicitors repeatedly invited mediation of the defendant trust, which repeatedly declined it because it correctly predicted that they were not liable on what was in any event a low quantum claim. The judge declined to deprive the trust of its costs on winning, finding “somewhat tactical” motives by the claimant’s solicitor, who had funded the case on a conditional fee agreement (CFA) with a 100% success fee. The appeal was limited to the issue of the costs order.
