Insurance And Reinsurance Weekly Update - 13 April 2013

Author:Mr Nigel Brook
Profession:Clyde & Co
 
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Wright v Michael Wright

Litigants in person and the court's encouragement for mediation

http://www.bailii.org/ew/cases/EWCA/Civ/2013/234.html

This case involved an appeal from a first instance decision on the basis of alleged procedural impropriety. Sir Alan Ward took the opportunity to make two general points though:

(1) The courts are facing increasing difficulties in dealing with litigants in person. Judges must try to "bring order to the chaos which litigants in person invariably - and wholly understandably - manage to create", without having to "micro-manage cases, coaxing and cajoling the parties to focus on the issues that need to be resolved". He commented that: "It may be saving the Legal Services Commission which no longer offers legal aid for this kind of litigation but saving expenditure in one public department in this instance simply increases it in the courts".

(2) His second concern was that "the case shows it is not possible to shift intransigent parties off the trial track onto the parallel track of mediation". He concluded that it may be time to review the rule in Halsey v Milton Keynes [2004] in which Dyson LJ said that "It seems to us that to oblige truly unwilling parties to refer their disputes to mediation would be to impose an unacceptable obstruction on their right of access to the court". Sir Alan Ward appears to suggest that that observation was obiter and possibly wrong. He went on as follows: "Does CPR 26.4(2)(b) allow the court of its own initiative at any time, not just at the time of allocation, to direct a stay for mediation to be attempted, with the warning of the costs consequences, which Halsey did spell out and which should be rigorously applied, for unreasonably refusing to agree to ADR? Is a stay really "an unacceptable obstruction" to the parties right of access to the court if they have to wait a while before being allowed across the court's threshold? Perhaps some bold judge will accede to an invitation to rule on these questions so that the court can have another look at Halsey in the light of the past ten years of developments in this field".

As for the appeal itself, the Court of appeal allowed it on the basis that the judge had wrongly conducted the trial on the written information which he had, without allowing the defendants to call live evidence.

Flatman v Germany

Whether claimant's solicitors liable to disclose funding arrangements to winning defendant, where claimant had a CFA but no ATE...

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