Declining to mediate for “Public policy” reasons

The Ministry of Justice will be smarting following the recent decision of Lady Justice Thirlwall, sitting as a Judge of the High Court, in Marsh v Ministry of Justice and government departments generally will have to review one of their favourite litigation party tricks of avoiding mediation on the grounds of supposed “Public policy”.

The case concerned a claim for psychiatric injury by a prison officer who had been suspended over allegations of sexual misconduct (subsequently found to be unproved) and failure to conduct an investigation properly. The claim began in 2012 with a letter of claim. In 2014, having made a Part 36 offer of £233,500 which was not even responded to, the Claimant offered mediation which the MoJ declined. In June 2016, the Court ordered that the parties should attempt to settle by ADR. In October 2016, the Claimant made a reduced Part 36 Offer of £180,000 and once again invited the MoJ to mediate. Once again, the MoJ did not respond to the Part 36 Offer and failed to engage in mediation.

The case went to trial and the Claimant was awarded damages of £286,000. In far too many ways, conduct of the case by the MoJ was an utter shambles, rightly and roundly criticised by the Court, and included informing the Court that the MoJ would be calling a witness who had died many months previously.

On the issue of costs, the MoJ submitted it acted reasonably in not mediating as this was not run of the mill litigation. Why was this not run of the mill litigation? Because, said the MoJ, it was a public body involved in a police investigation in a prison and, at the time, inquiries of abuse involving public institutions were matters of widespread public concern.

Nice try but no cigar.

The Court disagreed with the MoJ submission, observing that this was a personal injury claim by an employee against his employer, the sort of case readily resolvable through mediation. The purported greater public interest, and the Court appeared sceptical about whether it existed, was neither relevant nor effective to permit the MoJ to fail to take heed of court orders or disregard the need for proportionality. If the MoJ chose to hide behind public policy as a basis for not mediating, the costs consequences followed.

In an age when the machinery of government is increasingly at pains to play the public policy or public interest cards to justify its actions or inactions, at least in the mediation/litigation context, this is a step in the right direction.