The High Court has sliced a third from the costs of a defendant who won “on every substantive issue” because of failure to engage in alternative dispute resolution (ADR).
Mr Justice Turner found that the Metropolitan Police was not justified in deciding that there was no reasonable chance of ADR being successful in whole or in part.
His ruling in Laporte & Anor v The Commissioner of Police of the Metropolis  EWHC 371 (QB) followed a failed action against the police by two protestors against budget cuts following a meeting of Haringey council.
They argued that there should be no order for costs because the defendant refused to engage in ADR. The defendant responded by not only seeking an award of costs but contending that they should be assessed on an indemnity basis, and demanding a payment on account of £100,000.
Applying the six factors listed by the Court of Appeal in the Halsey ruling, extended by further guidance in 2013, Mr Justice Turner said the case was not one in which the nature of the dispute made it unsuitable for mediation.
Turner J said the defendants conceded that the merits of the defence were not “so strong in themselves to have justified a refusal to engage in ADR”.
He said the Metropolitan Police had made no offers to settle the case before ADR was suggested and had conceded that the cost of the process would not be ‘disproportionately high’.
Turner J said there was no reason why mediation in this case would have had the effect of delaying the trial of the action and he was “satisfied that there was a reasonable chance that ADR would have been successful in whole or in part”.
Mr Justice Turner held that, taking into account all of the factors listed in Halsey and all other relevant matters, the defendant’s failure to “fully and adequately” engage with ADR process should be reflected in the costs order.
“Regardless of this aspect of the case I would not have been minded to have made an order for indemnity costs in his favour,” he said.
“My adverse findings on the conduct of some of the police officers involved and the reasonable way in which the claim was presented on behalf of the claimants procedurally would militate against that.
“Further, I am not satisfied that public bodies should normally have a stronger claim to indemnity costs than other litigants.”
However, Turner J said that the scale of the defendant’s shortcomings in terms of his failure to engage with ADR did not justify disentitling it from claiming any of its costs.
He said the Metropolitan Police “did ultimately win on every substantive issue and, although ADR made settlement a sufficiently likely possibility, it would have been by no means certain”.
Exercising his “broad discretion” under the rules, Mr Justice Turner awarded the defendant two thirds of its costs, on the standard basis, and ordered the claimants to pay £50,000 on account.