Since 1999, the rules governing litigation have been, in truth, more akin to guidelines where parties were encouraged to act reasonably in their dealings with each other. This was highlighted again in a recent Court of Appeal decision in PGF II SA v OMFS Company 1 Limited. Here one of the protagonists failed to respond to an invitation from the other side to mediate this dispute even while proceedings were underway. The invitation was not rejected outright: it was simply greeted with silence. The Court of Appeal found that that silence amounted to an unreasonable refusal to engage in alternative dispute resolution and therefore deserves punishment in costs. Lord Justice Briggs acknowledged that this sanction was “a little more vigorous than I would have preferred” but said that it operated “pour encourager les autres”. The lesson is clear: if you are in a dispute and your opponent suggests mediation or some other form of alternative dispute resolution, you are well advised to respond favourably to that suggestion. To do otherwise places you at risk of a hefty costs order.  Griffin Law is a dispute resolution firm comprising innovative, proactive, tenacious and commercially-minded lawyers. We pride ourselves on our close client relationships, which are uniquely enhanced by our transparent fee guarantee and a commitment to share the risks of litigation.  If you have any specific questions regarding a dispute, please email or call 01732 52 59 23.


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