By the time the trial was heard by this court in November 2020, the restrictive covenants had long since expired and I was told that the Claimant’s monetary claim amounted to a mere £39,000. Despite this, the trial remained expedited and the time estimate had become 7 days. This was a significant under-estimate for a trial of this complexity involving as it did three parties, two represented by Leading Counsel and the third, Ms Falconer, being a litigant in person. It was only by the accommodation of long court sitting days that the trial was completed in 7 ½ days. When I asked Mr. Sethi QC, counsel for the Claimant, why, in view of the fact that the covenants had expired and the claim for damages was extremely modest, the parties had continued to a full trial on an expedited basis, he candidly admitted that the dispute was in truth now largely a dispute about who should pay the costs of the action. I was told that the costs of the Claimant alone were close to an eye-watering £500,000, in circumstances where Ms Falconer, the First Defendant, had to represent herself because of a lack of funds. In view of these facts, it is highly regrettable, and to nobody’s credit, that the parties failed to settle this case at a mediation in January 2020 and instead chose to occupy the court’s time fighting a full-blown trial.
This is a problem mediators often encounter. Costs can be an obstacle to settlement as clients often want to settle at a mediation but baulk at the amount of legal costs incurred. Much better to mediate as soon as possible and avoid court costs and legal fees building up a barrier and making a trial inevitable.