Halsey v Milton Keynes General NHS Trust

This claim is brought by Lilian Halsey pursuant to the provisions of the Fatal Accidents Act 1976 (as amended) in relation to the death of her husband, Bert Halsey, on 27 June 1999 at the Milton Keynes General Hospital. At the date of his death, the deceased was 83 years of age. The claim arose out of the allegedly negligent treatment of him while he was a patient at that hospital.

He was transferred to the hospital on 25 June 1999. At that time, he was suffering from several serious health problems. It was not in dispute that his life expectation was short. He was being fed by means of a nasogastric feeding tube. The basis of the claim was that his death was caused by the tube being incorrectly fitted, so that, rather than directing liquid food into the deceased’s stomach, it was directing it into his left lung. Following his death, a post mortem examination was performed by Dr Mayers, a consultant histopathologist, employed by the defendant Trust. She concluded that the cause of death was airway obstruction due to the introduction of nasogastric nutrition into the airway and lung as a result of the insertion of a nasogastric tube into the major airway.

An inquest was held into the deceased’s death. For this purpose, HM Coroner requested statements from the medical and nursing staff most closely involved in the deceased’s care at the hospital. The claimant instructed Messrs Osborne Morris and Morgan (“OMM”) to attend the inquest on behalf of the family. The Trust refused a request that it should meet the cost of OMM’s preparation and attendance at the inquest. On 11 January 2000, OMM wrote to the Trust’s solicitors saying:

“We should perhaps point out that our clients would have agreed to limit their entire claim in this matter to the costs of the representation of the inquest. Indeed they would have been prepared to limit the preparation and attendance to £5000. No doubt your clients will bear this in mind when we issue proceedings against them following the inquest. The family have been forced to issue proceedings simply because of your clients refusal to meet the costs of the attendance”.

The inquest was held on 14 January 2000. The Coroner heard evidence from several nurses, Dr Mayers and Dr Lanzone Miller, a consultant physician and gastro-enterologist. Dr Miller disagreed with Dr Mayers’ view that nutrition had entered the airway and lung due to the insertion of the nasogastric tube into the major airway. Dr Miller considered that the explanation for the presence of nutritional feed in the lung was regurgitation followed by aspiration of the stomach contents at or around the time of death. At the conclusion of the evidence, the Coroner recorded the medical cause of death as:

“1(a) airway obstruction;

1(b) introduction of nasogastric nutrition into airway and lungs;

2 chronic renal failure; old myocardial infarct; chronic obstructive pulmonary disease and fractured ribs”.

By a letter dated 18 January 2000, OMM informed the Trust that the deceased’s family would be prepared to accept a payment of £7500 bereavement damages together with a contribution towards their costs. The Trust’s solicitors replied on 4 February saying that they were instructed “to take all necessary steps to resist a claim, to trial if necessary, should one be forthcoming”. On 7 February, OMM asked the Trust whether they were prepared to refer the matter “for alternative dispute resolution that is, mediation, again to ensure that unnecessary costs are incurred (sic). Our client wants to mediate this claim”.

On 6 April 2000, OMM wrote to the Secretary of State for Health giving him early notice of the proceedings, and saying:

“You will see from the correspondence that I have at every juncture sought to meet, negotiate and mediate this claim with the least amount of cost to the NHS. Unfortunately all such attempts have been rejected. I want you to have this correspondence in mind when the final bill payable by the NHS for legal costs is in the region of £100,000.”

By letter dated 14 March 2000, the Trust’s solicitors replied saying that they did not accept that there was any claim arising out of the care provided to the deceased, and that all necessary steps would be taken to resist a claim, to trial if necessary.

On 25 April 2001, OMM wrote to the Trust a letter of claim in accordance with the clinical negligence pre-action protocol. The letter included an offer to accept the sum of £12,500 together with reasonable costs pursuant to CPR Part 36. This evoked a response on 1 May in which the Trust said that it would be defending the claim. On 25 July 2001 the Trust sent its protocol response denying liability, and asserting:

“As there is no negligence, the Trust will not be settling this claim. In view of this, I do not believe it is appropriate to meet with you and discuss this claim or refer this case to mediation as the Trust’s stance will not change in this respect. Therefore, any such meeting or mediation will be unnecessary waste of both costs and resources”.

On 5 November 2001, OMM wrote to the Trust saying:

“We must make it clear to you at this stage that it was never our intention to issue proceedings since this was quite obviously a case that could have been resolved by mediation”.

The claim form was issued on 13 May, and served on 9 September 2002. On 10 September 2002, OMM wrote:

“Despite the fact that we have issued proceedings in this matter we are anxious to avoid unnecessary costs being incurred. We would therefore invite you to consider referring this case to mediation so that we can perhaps resolve it to the satisfaction of our client without unnecessary costs being incurred”.

This request was repeated by OMM’s letter of 13 September 2002. The Trust replied on 16 September:

“I have as yet been provided with no evidence that it would be an effective use of NHS resources to go to mediation on this small value claim, where liability is in dispute. What your costs are, are obviously a matter for you and your client, the Trust costs on this claim, even to trial will only be low”.

On 3 April 2003, OMM wrote yet again urging the Trust to consider either mediation or at least a meeting to discuss a possible settlement:

“We are certain agreement could be reached whereby further unnecessary costs would be avoided”.

The Trust replied on 4 April, repeating its position that “on such a low quantum claim, we do not consider this to be a cost effective use of NHS resources”. On 30 April 2003, OMM wrote again pointing out that they had made every attempt to try to avoid the costs of litigation, but all such attempts had been rejected out of hand. They referred to the decision of this court in Dunnett and that of Lightman J in Hurst, and said that they would be relying on these decisions when the court came to consider the question of costs, since the Trust had acted unreasonably. On 1 May 2003, the Trust replied saying:

“In respect of your request that we clarify why “mediation is not a cost effective use of NHS resources on such a low cost claim”, (a) it has little chance of success and (b) the costs of mediation would be as great, if not greater for such a low value claim than attending trial. … if you do not intend to consider a “drop hands” agreement, then I look forward to receiving your indexed trial bundle and summary in order that we may consider and amend/agree them”.

The trial took place on 1 and 2 June 2003. The judge gave judgment on 17 June, and dismissed the claim. He then heard argument on the question of costs. It was submitted by Mr Meakin on behalf of the claimant that there should be no order as to costs, and in support of his submission he relied on the refusal of the Trust to agree to a mediation. The judge was referred to some, if not all, of the correspondence to which we have referred. He said that he had the feeling that the letters written by OMM had been “somewhat tactical”. He also thought that it was unusual to commence litigation by writing to the Secretary of State for Health as occurred in this case. At para 32 of his judgment, he said:

“I think that the question for me to decide is was the defendant’s attitude to ADR a reasonable one, or not a reasonable one or to use the words of Lightman J, were they justified in taking the view that mediation was not appropriate because it had no realistic prospect of success? Having considered and been taken through much of this correspondence, although, as I say, notably not the correspondence preceding the letter to the Health Secretary in 2000, it seems reasonably clear to me that although there are a number of tactical observations to the effect that the claimant would like ADR, it remains perfectly clear that this is not a case which they were disposed to compromise on any terms which could possibly be reasonable to the defendants. The Defendants took the view, legitimately as I have found, that this was a case in which there simply was no negligence. It is significant that I have been told that on 4^th March of this year, fairly shortly before trial, an offer was made by the defendant to the claimant that the matter should be settled on the basis that both parties simply walked away from the litigation and neither paid their costs, but that did not attract the advisors to the claimant or the claimant herself. She started off asking for £12,000, towards the end was offering to accept £7,500 and funeral expenses. It seems perfectly clear that it would only have been by the payment of some significant, albeit modest by the standards of this type of litigation, sum of money that the defendants would have been able to buy off the claim, whether by ADR or in any other way. I do not think that the CPR is designed to make parties which have a good defence settle claims which they do not wish to settle, when they ultimately end up winning and are vindicated in the view that they have taken, I do not think it proper, at least not in a run of the mill case, to say that they should then suffer by being denied their costs. This was a perfectly straightforward case of a kind which the defendants were justified in defending and justified in saying that they did not want to pay any money to the claimant in respect of. The claimant was only prepared to settle on the basis that she was going to be paid some money, and therefore there was not much point in talking to any greater extent than they did. It is to be observed that the correspondence from the defendant was both full and reasonable.”

In the light of our exposition of what we conceive to be the correct approach, we have no difficulty in concluding that the judge was correct to decide that the Trust should not be deprived of any of its costs on the grounds that it had refused to accept the claimant’s invitations to agree to a mediation. In our view, the claimant has come nowhere near showing that the Trust acted unreasonably in refusing to agree to a mediation. We start by noting that this is not a case where the court made any order encouraging mediation. We accept that the subject-matter of this dispute was not by its nature unsuitable for ADR. But the Trust believed that it had a strong defence, and had reasonable grounds for that belief. Moreover, the judge was justified in saying that the letters written by the claimant’s solicitors were “somewhat tactical”. We think that, if anything, this was an understatement. The extraordinary letter written to the Secretary of State very early on was an attempt to extort a sum (plus costs) in settlement of a very small claim which, at best, was speculative. The writing of no fewer than 5 letters asking the Trust to agree to mediation was of a piece with this early letter. The requirement that the Trust should pay the claimant’s costs is of particular significance, since she had entered into a conditional fee agreement with her solicitors, with a 100% success fee.

Another highly relevant feature of this case was that the Trust reasonably took the view that the costs of a mediation would be disproportionately high when compared with (a) the value of the claim if liability were to be established and (b) the Trust’s costs of a trial. The Trust was entitled to regard this as a factor strongly militating against mediation.

Nor did the claimant discharge the burden of proving that mediation had a reasonable prospect of success. The Trust had taken the view that the claim would not succeed, and had decided not to make any payment to the claimant. Mr Allan Gore QC submits that the claimant might have been persuaded in the course of the mediation to drop her claim: all she really wanted was an explanation of how her husband had died in hospital. This possibility cannot be dismissed as fanciful, although there is no evidence to support it. But in our judgment, the claimant comes nowhere near proving that there was a reasonable prospect that the mediation would have been successful. In the circumstances of this case, the stance adopted by the Trust cannot fairly be said to have been unreasonable.

The final point urged by Mr Gore is the ADR pledge. But as we have already said, this pledge adds nothing. If the case was suitable for ADR, the claimant does not need the pledge; and if the case was not suitable for ADR, the pledge did not require the Trust to agree to mediation. The same applies to the initiative of the NHSLA referred to at para 7 above: the statement merely says that NHS bodies offer mediation in “appropriate” cases.

For all these reasons, we dismiss the appeal.

On 15 December 1996, the claimant was injured in an accident involving the first defendant. On 13 March 1999, he was injured in an accident involving the second defendant. The claimant brought separate actions against the two defendants. These were subsequently consolidated. The first defendant instituted CPR Part 20 proceedings against the second defendant, seeking a contribution in respect of any damages found payable to the claimant. Both defendants admitted liability to the claimant. The claimant and first defendant jointly instructed Mr M J Gibson FRCS, a consultant spinal surgeon. Mr Gibson advised that the claimant suffers from a congenital spinal stenosis, and that, as a result of the first accident, symptoms of the claimant’s pre-existing stenosis were accelerated by 7-10 years. Of the second accident, Mr Gibson said:

“He aggravated the pre-existing problems producing an exacerbation of these which would have lasted for in the order of 3 to 6 months. Thereafter persistence of symptoms primarily relates to his pre-existing problem that started after the injury on the 15^th December 1996”.

Mr Gibson was asked whether the second accident would have had a similar effect to the first accident had the claimant been free of symptoms immediately prior to the second accident. He replied by letter dated 25 June 2002 that: “on the balance of probabilities, this second accident would have exacerbated Mr Steel’s condition by 7 to 10 years”. Mr Recorder Thomas QC summarised the effect of the agreed medical evidence at para 10 of his judgment in these terms:

“So what it comes to, in very simple terms, is that as a result of the first accident, the claimant’s already existing problems were accelerated by a period of years, in the order of 7 to 10 years. In the second accident, two and a quarter years later, Mr Gibson makes it clear that there was an exacerbation of 3 to 6 months by reason of the second accident, and we understand (and when I say “we understand” this is raised by me in argument with Counsel today), we understand that really what he is meaning by the 3 to 6 months aggravation from the second accident is that there was a flare-up of conditions for that limited period of time as a result of the second accident. He says in the report and the correspondence I have referred to that effectively, if the first accident had not happened, then the second accident would have had the same effect as the first accident if the first accident had not already occurred. However, save for the 3 to 6 months aggravation, the second accident did not in fact affect the claimant’s existing medical condition which had already been arrived at by then as a result of his pre-existing condition and the first accident”.

The trial took place on 3 July 2003. It was agreed that the Recorder should determine the causation issue that had been raised on the pleadings, namely whether the second defendant had caused the claimant to suffer any more damage than 3 to 6 months’ aggravation of his symptoms of stenosis. On behalf of the first defendant, it was submitted that the second defendant had also caused or contributed to the 7-10 years acceleration of the claimant’s symptoms. The second defendant contested this. The Recorder found in favour of the second defendant. He held that the second accident “did not affect the long-term prognosis that there already was from the first accident” (para 19), and derived support for his conclusion from the decision of this court in Performance Cars Ltd v Abraham [1962] 1 QB 33. The first defendant appeals against this decision.

Mr Foster’s primary submission is that, since there was an “exact overlap of damage”, the second accident damage can be said to have overtaken the first accident damage, so that the first defendant is only liable for the damage which was suffered during the period between the dates of the two accidents. His alternative submission is that the two defendants should be regarded as concurrent tortfeasors who, as regards the acceleration of the stenosis symptoms, both caused the same damage, and between whom there would be rights of contribution under section 1 of the Civil Liability (Contribution) Act 1978.

The first of these submissions is completely unsustainable. The phrase “exact overlap of damage” is not apt on the facts of this case. The damage attributable to the first accident (acceleration of symptoms by 7-10 years) had already occurred by the date of the second accident. That historical fact cannot be expunged simply because that same damage would have been caused by the second accident if the first accident had not occurred. In these circumstances, it is a misuse of language to describe the acceleration of symptoms by 7-10 years as “exactly overlapping damage”, and plainly wrong to say that the second accident damage overtook and extinguished the first accident damage.

Nor can we accept the alternative submission. In our judgment, this case cannot be distinguished from Performance Cars. Mr Foster implicitly accepts this, because he contends that Performance Cars was wrongly decided and should not be followed. In that case, the defendant negligently caused his car to collide with the plaintiff’s car and damaged its front wing. It was agreed that to make good the damage, the whole of the lower part of the car would have to be resprayed at a cost of £75. The plaintiff had previously been involved in another collision in which his car had suffered damage to the rear wing which had not been made good. This damage also required a similar respray. The plaintiff had sued the person responsible for the first damage and recovered judgment for £75, the cost of the respray. That judgment had not been satisfied. This court held that the plaintiff was not entitled to recover the cost of the respray from the defendant, since he had damaged a car which was at the time of the accident in need of respraying, with the result that the need for respraying did not flow from the defendant’s wrongdoing. Accordingly, the claim against the defendant failed. Lord Evershed MR said that “the necessity for respraying was not the result of the defendant’s wrongdoing because that necessity already existed” (p 39). At p 40, he said:

“In my judgment in the present case the defendant should be taken to have injured a motor-car that was already in certain respects (that is in respect of the need for respraying) injured; with the result that to the extent of that need or injury the damage claimed did not flow from the defendant’s wrongdoing. It may no doubt be unfortunate for the plaintiffs that the collisions took place in the order in which they did.”

Donovan LJ said at p 42:

“The question as I see it is this: what extra burden in the matter of respraying was put upon the plaintiff company by the second collision? To my mind the answer must be: None, for the earlier collision had already imposed the burden of respraying upon them.”

Mr Foster submits that the law has moved on since Performance Cars was decided and that the court is now required to apply what he calls “equitable pragmatism” in a case such as this. He says that justice requires the court to hold that the two defendants were concurrent tortfeasors who were both responsible for the same damage. The analysis adopted by the judge in the present case would mean that, if the first defendant had not been before the court or had been insolvent, the claimant would not have been compensated for his loss: such an unjust conclusion can, and should, be avoided. Justice requires the court to hold that both defendants caused the damage, and that, as between themselves, the court should assess the contribution that is just and equitable having regard to their respective responsibilities for the damage in question: see section 2(1) of the 1978 Act.

In support of these submissions, Mr Foster relies in particular on Rahman v Arearose Ltd [2001] QB 351. In that case, the claimant who was employed by D1 was assaulted at work by two fellow employees and suffered an injury to his right eye. As a result of medical negligence committed by D2 in the course of an operation, he later lost the sight in his eye entirely. He also suffered post-traumatic stress disorder and depression. At p 364D of his judgment, Laws LJ rejected the submission that the case was one of “concurrent torts”, since on the evidence the respective torts committed by the defendants were the causes of distinct aspects of the claimant’s psychiatric condition. At paras 26-33, he discussed the issue of causation, and said: “Once it is recognised that the first principle is that every tortfeasor should compensate the injured claimant in respect of that loss and damage for which he should justly be held responsible, the metaphysics of causation can be kept in their proper place” (para 32). It is this passage on which Mr Foster places particular reliance. But it is important to point out that Laws LJ also said at para 34:

“Once one leaves behind, as for the reasons I have given one should, the dogmas of novus actus and eggshell skulls, there is nothing in the way of a sensible finding that while the second defendants obviously (and exclusively) caused the right-eye blindness, thereafter each tort had its part to play in the claimant’s suffering.”

And at para 36, he said:

“Here, the question what the position would have been if the second tort had not been committed is highly material: the second defendants are not to be held responsible for damage the whole of which had already been inflicted on the claimant by the first defendants.”

It seems to us that there is nothing in the decision in Rahman which supports Mr Foster’s alternative submission.

Reference was made during the course of argument to Baker v Willoughby [1970] AC 467. In that case, the plaintiff’s leg, which was injured in a car accident caused by the negligence of the defendant, was later shot by some robbers. The House of Lords held that the defendant was liable for the full consequences of the injury he caused regardless of the second incident, and had to pay damages based on the plaintiff’s losses beyond the time when his leg was amputated as a result of the second incident. This decision was criticised by some of their lordships in the House of Lords in Jobling v Associated Dairies [1982] AC 794. It is unnecessary to consider the speeches in Jobling. For present purposes, it is sufficient to state that Baker should be regarded as an exception to the general “but-for” test, which was justified by the principle of fully compensating the plaintiff for damage tortiously inflicted. It was recognised that, if the defendant’s argument were accepted, namely that he had no liability in respect of the period after the plaintiff’s leg had been amputated, the plaintiff would fall between two defendants, and not be entitled to full compensation.

This point was most clearly articulated by Lord Pearson who said of the defendant’s argument at p 495E:

“That is the argument, and it is formidable. But it must not be allowed to succeed, because it produces manifest injustice. The supervening event has not made the plaintiff less lame nor less disabled nor less deprived of amenities. It has not shortened the period over which he will be suffering. It has made him more lame, more disabled, more deprived of amenities. He should not have less damages through being worse off than might have been expected.

The nature of the injustice becomes apparent if the supervening event is treated as a tort (as indeed it was) and if one envisages the plaintiff suing the robbers who shot him. They would be entitled, as the saying is, to “take the plaintiff as they find him.” (Performance Cars Ltd v Abraham [1962] 1 QB 33.) They have not injured and disabled a previously fit and able-bodied man. They have only made an already lame and disabled man more lame and more disabled.”

Lord Reid had also referred to Performance Cars at p 493F, and said at p 493G:

“These cases exemplify the general rule that a wrongdoer must take the plaintiff (or his property) as he finds him: that may be to his advantage or disadvantage. In the present case the robber is not responsible or liable for the damage caused by the respondent: he would only have to pay for additional loss to the appellant by reason of his now having an artificial limb instead of a stiff leg.”

The importance of Baker for present purposes is that their lordships recognised that Performance Cars was good law. Both Lord Reid and Lord Pearson explicitly stated that the robbers would not have been liable for the plaintiff’s loss of a good leg. It was precisely because Performance Cars was good law that under-compensation of the plaintiff could only be avoided by making the defendant liable for the loss attributable to the leg injury even after the amputation. Accordingly, the “but-for” test could not be applied, just as it has not been applied in cases involving multiple tortfeasors such as Fairchild v Glenhaven Funeral Services Ltd [2003] UKHL 22, [2003] 1 AC 32.

In our judgment, Performance Cars is still good law. It has been frequently referred to in the textbooks and, so far as we know, without disapproval. As a matter of logic and common sense, it is clearly correct. We do not consider that it produces an unjust result. The claimant is entitled to recover damages from the first defendant for the losses inflicted by him; and from the second defendant for any additional losses inflicted by him. It is true that, if the first defendant is not before the court or is insolvent, the claimant will not be fully compensated for all the losses that he has suffered as a result of the two accidents. But that is not a reason for making each defendant liable for the total loss. In Baker, the issue was whether the tortfeasor who had caused the first injury was liable for its consequences after they had arguably become merged in the consequences of the second injury. In the present case, the question is whether the second tortfeasor is responsible for the consequences of the first injury. To that question, the answer can only be: no. It is true that, but for the first accident, the second accident would have caused the same damage as the first accident. But that is irrelevant. Since the claimant had already suffered that damage, the second defendant did not cause it. This is not a case of concurrent tortfeasors.

Proceedings against the first defendant were started by the issue of a claim form on 14 September 1999. Proceedings against the second defendant were commenced by the issue of a claim form on 12 March 2002. On 29 July 2002, an order was made consolidating the two claims. On 9 May 2003, the first defendant’s solicitors wrote to the second defendant’s solicitors:

“To dispose of all issues as between defendants/claimant, our clients offer to mediate the issues in this case. We have no trial date yet but the trial window envisages a trial within the first three weeks of July. Mediation should take place as soon as possible and certainly by early June.

This letter is being copied to the claimant’s solicitors on an equal invitation.

We have also taken the step of asking the ADR Group to liase with all parties with a view to proposing potentially suitable mediators and agreeing a date for mediation if the parties agree mediation. Please let us know immediately if you have any objection to seeking a mediator through the ADR Group.

In the event that any party refuses this offer of mediation, this letter will be drawn to the attention of the trial judge and you will note that this is an open offer to mediate the case. We shall ask the judge to make a ruling as to costs in the event that any party refuses a mediation. We believe that this case is eminently capable of being resolved by mediation”.

This offer was repeated to the claimant. By letter dated 20 May, the first defendant’s solicitors replied:

“After giving very careful thought to the proposal, our insurance principals have come to the conclusion that this would not be an appropriate case for mediation. The issue between the defendants is one of law and therefore is requiring of a decision of the court. In such circumstances we cannot see there is any benefit to either side in mediation.

So as to make our position perfectly clear, our insurance principals would have no objection to mediation taking place between yourself and the claimant with a view to resolving the claimant’s claim”.

By their letter dated 27 May, the first defendant’s solicitors responded, stating that they did not accept that the dispute was incapable of resolution, although it related to a point of law. They added:

“If your clients persist in refusing to mediate this case, then we will have no option but to place this and our earlier correspondence before the court. When the court comes to consider the question of costs and conduct in particular in refusing mediation.”

The second defendant’s solicitors replied on 28 May, saying: “We are not prepared to compromise on the point of law and therefore mediation would be pointless”.

Having decided the causation issue in favour of the second defendant, the Recorder turned to the question of costs. He decided that costs should follow the event. His reasoning is set out in the following passage of his judgment:

“Well I am going to come to the same final view in relation to this case as it now arises before me. The possibility of alternative dispute resolution was raised fairly late in the day here as far as the chronology of this case was concerned. That is not to say that simply because it is raised late on means that it is of no consequence, far in fact from it, but it is a factor in the equation. But here, where the issue that has arisen is the one that I identified earlier today, which Mr Elgot goes as far as to describe as quite exceptional, using the language that arises in that case of Hurst v Leeming, it seems to me that alternative dispute resolution would have been likely to achieve very little. I do accept Mr Foster’s general point, although it is not of application I think in the facts of this particular case, that alternative dispute resolution brings to bear a different set of “tools” than formal litigation in open court such as this, and who knows what alternative dispute resolution can achieve in some cases. However here in this case, when Mr Elgot poses for me the question what could alternative dispute resolution really have achieved at this particular late stage of the litigation as far as this particular topic was concerned, I must say I wonder really what could have been achieved.”

In considering whether the first defendant has shown that the second defendant acted unreasonably in refusing the offer of mediation, a number of points need to be borne in mind. The full value of the claim was agreed by the parties at £195,000. The second defendant made a CPR Part 36 offer of £3,500 before proceedings started on the footing that this was a generous assessment of the value of the 3-6 months’ exacerbation of the symptoms caused by the second accident. It can be seen, therefore, that almost £200,000 turned on the causation issue that was eventually tried by the Recorder.

As in Halsey, so in this case, the court did not make any order encouraging the use of ADR. This is not, therefore, a case where a party refused even to consider ADR despite a court order that it should do so.

This case raised the question whether Performance Cars is still good law, or whether it could be distinguished. Put like that, the claim against the second defendant, therefore, raised a question of law. In our judgment, the second defendant did not act unreasonably in saying that he (or more realistically his insurers) wanted to have that question resolved by the court. In these circumstances, the nature of the dispute was one which was towards the “intrinsically unsuitable” end of the spectrum. It is a far cry from a typical road traffic claim which raises no disputes of law, and where disputed facts are intrinsically suitable for resolution by ADR.

The second defendant reasonably believed that the claim against him had no merit. We hope that we have not done injustice to Mr Foster’s submissions, but like the Recorder we think that the answer to the question raised by the causation issue was plain. It follows that the first defendant has not shown that there was a reasonable prospect that a mediation would have succeeded. The second defendant had decided to take a stand on the point of law. In doing so, he was not acting unreasonably.

There are yet further factors which the second defendant was entitled to pray in aid in support of the reasonableness of his refusal to agree to mediation. First, the costs of the mediation would have been excessive in comparison with the costs of litigating the issue at trial. The issue was disposed of by the Recorder in about two hours. Mr Christopher Purchas QC has suggested that the total costs of a mediation involving all three parties would have been of the order of £20,000. That figure (which was not investigated before us) does look surprisingly high. But on any view this is a case where a mediation would have been unlikely to be successful, and would probably have been relatively expensive when compared with the cost of a trial which, in the event, lasted about 2 hours. Secondly, as the Recorder pointed out, the offer of mediation came comparatively late in the litigation after substantial costs had already been incurred.

Taking all these factors together, we are in no doubt that the first defendant has not proved that the second defendant acted unreasonably in refusing to agree to mediation in this case.

It follows that the first defendant’s appeal is dismissed on both issues.