Settlement Agreements and Mediation

In R (on the application of Paul Crawford) v Newcastle Upon Tyne University [2014] EWHC 1197 (Admin) the Administrative Division of the High Court has considered silence in the face of an invitation to mediate where another form of ADR was also being used simultaneously.

A medical student issued judicial review proceedings against his university. The student had failed his examinations and failed a resit. He claimed that the university had not calculated his grade in accordance with the appropriate handbook.

The student complained to the Independent Adjudicator for Higher Education. The adjudicator provisionally rejected the complaint. The student then started judicial review proceedings and immediately invited the university to mediate. The university’s solicitors said that it agreed in principle to mediation and asked what the student had in mind. He then said he wanted to explore the possibility of him undertaking a 12 month medical placement before re-sitting his final examinations again. The university did not then reply.

The adjudicator subsequently found the student’s complaint to be unjustified. To end the judicial review proceedings the university then made a formal offer to the student that it would agree to bear its own costs if the student discontinued his claim. C did not reply.

The student’s judicial review claim then failed. The university argued it was entitled to its costs because it was the successful party in the case. One of the arguments the student put forward was that he should not have to pay those costs because the university had unreasonably refused to engage in mediation.

The Court noted that the reality of the situation was that the adjudication process was dealing with the same issue as the judicial review. When the student suggested mediation he was therefore already simultaneously using a form of ADR to try and settle the dispute. Both parties had fully engaged with that adjudication process. The Court said it was difficult to see how the university was being unreasonable in not engaging in a different and further form of ADR.

The Court commented how the university had been discourteous in not responding to the mediation invitation. The Court noted that, as explained in our earlier blog post, silence in the face of mediation can be unreasonable and lead to costs sanctions even if an outright refusal to participate would have been justified on reasonable grounds. However, the Court said that this was not an invariable rule and the burden remained on the claimant to show that the failure to respond had been unreasonable.

Here the university’s solicitors had responded and it could not be said that there had been a refusal to engage in ADR because it had engaged with the adjudication process. The Court said that the fact that the university initially agreed in principle to ADR did not mean it had accepted it was appropriate. This was especially so as there had not at that stage been a proposal from the student as to what mediation might achieve.

After the adjudication, the Court said it was not unreasonable for the university to take the view that it had grounds to resist the proceedings. Further, the student’s proposal for mediation was different to the outcome which was being sought in the judicial review proceedings. The student wanted a second re-sit but the purpose of the judicial review was to attack the handbook. There was therefore no reasonable prospect of the mediation succeeding.

Ultimately the Court held that there was no reason to depart from the general costs rule that the university would be awarded its costs of the proceedings.

This is an interesting decision which shows that there is no need to accept every offer to settle by means of ADR. However, in some cases there may be a fine line to ensure that a refusal is not considered to be unreasonable. Each case must be carefully considered in the light of the circumstances.

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