Beware the Consequences of Failing to Consider ADR

Author:Mr Robert Neill
Profession:Herbert Smith

Dunnett v Railtrack plc (The Times, 3 April 2002)

In a recent decision the Court of Appeal refused to order the unsuccessful

claimant to pay the defendant's costs of an appeal because the defendant had refused to

contemplate Alternative Dispute Resolution (ADR). Lord Justice Brooke (with whom Lord

Justice Robert Walker and Lord Justice Sedley agreed) specifically stated that he hoped any

publicity given to this part of the judgment would draw the attention of lawyers to their

duties to further the overriding objective, which include encouraging parties to use ADR,

and if they turn down ìout of handî the chance of ADR when suggested by the court,

they may have to face ìuncomfortable costs consequencesî.


The claimant's appeal was against the judgment of Judge Graham Jones in the Cardiff County Court in December 1999. The trial judge dismissed the claim against the defendant, Railtrack plc, for damages for negligence arising out of the death of three of the claimant's horses in 1996 on the Swansea to London railway line. The gate separating the railway line from the claimant's field had been left open, shortly after the defendant's contractors had replaced the gate. The horses had wandered onto the railway line and been killed by an express train. The claimant claimed £9,000, being the agreed value of the horses, and also damages for post-traumatic stress disorder (as she had seen the mangled remains of at least two of her horses on the railway line after the accident).

The claimant's (former) legal advisers, at the time of the trial, had limited the way in which her claim was pursued. The trial judge rejected her claim on liability and found that the defendant had met its statutory duty of care. The trial judge added that if the claimant had any real concerns about the gate, she should have taken the matter further with the defendant than the one conversation she had with one of the defendant's workmen.

The claimant was given leave to appeal on liability (and the defendant cross-appealed on the judge's comments that if she had succeeded on liability, she would have been entitled, in principle, to recover damages for post-traumatic stress disorder).

Settlement Discussions

Before the appeal was heard, the defendant made an offer to pay £2500 to the claimant in full and final settlement of all her claims including interest and costs. It appears that a further offer of £2,500 was subsequently made but the claimant...

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