The CJC has pubished its draft rules for fixed recoverable costs likely to come into force from October 2023.
It is notable that mandatory mediation or integrated mediation is not part of the new rules.
However under CPR Part 45 where a party has behaved unreasonably they may have to pay 50% more fixed costs. As refusing to mediate is often considered to be unreasonable, it seems likely that parties will offer to mediate in many cases in case they can claim a 50% increase in fixed costs. The new rule is as follows:
Unreasonable behaviour
45.13.—(1) Where, in a claim to which Section VI, Section VII or Section VIII of this Part applies, an order for costs is made in favour of a party whom the court considers has behaved unreasonably, the other party may apply for an order that those costs be reduced by an amount equivalent to 50% of the fixed recoverable costs which would otherwise be payable.
(2) Where, in a claim to which Section VI, Section VII or Section VIII of this Part applies, an order for costs is made against a party whom the court considers has behaved unreasonably, the other party may apply for an order that those costs be increased by an amount equivalent to 50% of the fixed recoverable costs which would otherwise be payable.
(3) In this rule—
(a) unreasonable behaviour is conduct for which there is no reasonable explanation; and
(b) ‘fixed recoverable costs which would otherwise be payable’ does not include—
(i) VAT;
(ii) any additional amounts under rules 36.17 or 36.24; or
(iii) any disbursements
The rules also provide fixed fees for mediation/ADR, so there is no reason therefore not to mediate.
S13
Alternative Dispute Resolution: additional fee payable once only where a mediation or joint settlement meeting takes place
£1,200
S14
Alternative Dispute Resolution: additional fee payable once only for specialist legal representative attendance at a mediation or joint settlement meeting covered by S13
£1,400
£1,700
£2,000
£2,300
Anyone wanting to instruct a mediator please feel free to get in touch.