Geoff Brewer of Brewer Consulting considers the requirement for mediation of disputes

Part 1.4 of the Civil Procedure Rules requires the court to actively manage cases in order to further the "overriding objective", which is stated to be a requirement to deal with cases justly.

Part 1.4 goes on to state that active case management includes encouraging the parties to use alternative dispute resolution procedures (ADR) if the court considers that appropriate, and facilitating the use of such procedures.

There are a number of forms of ADR, including expert determination and conciliation. Mediation is perhaps the most common. A mediato0r does not give a ruling upon the dispute but instead acts as a neutral third party to assist the parties to find their own settlement.

Solicitors will understand that a request by the court to consider ADR is not to be treated lightly. Ignoring such a request may be relevant to the reimbursement of the parties' costs. The very recent case of Susan Jane Dunnett -v- Railtrack provides an example.

While Railtrack was successful (although perhaps only on a technicality), the Court of Appeal refused to allow that its costs should be met by the losing party, because Railtrack had earlier refused to countenance mediation.

Susan Dunnett lives with her partner at a farm alongside the Swansea to London railway line near Bridgend. They keep horses for livery. There is an accommodation crossing across the railway line to neighbouring farmland. There used to be a wooden five-bar gate at the crossing, but this fell into disrepair.

The gate was replaced by Railtrack contractors, who installed a new iron gate. The old gate was sprung in a way that it would close without the need for it to be properly shut. However, it was so stiff that it would barely open, and this caused a lot of problems.

The new iron gate swung open much more easily, but it would not shut unless it was specifically closed.

Two contractor's men brought the gate to the site in a yellow van, which they parked by the gate to Dunnett's yard. When they got out of the van, they chatted to Dunnett about her horses and one of the men told Dunnett they were working on the gate.

She commented that she was worried about the gate being left open and enquired if there was any chance of it being padlocked. The workmen replied that there was a legal requirement for them to have access to the line and it would be illegal to padlock the gate.

Soon after the new gate was installed, Dunnett put four horses out to graze early one morning. Before she left she checked that the new gate was properly shut.

When she returned later that morning, she found the gate wide open and three of the horses no longer in the field. They had strayed on to the railway line, where they had been struck and killed by an express train some way down the line.

Dunnett commenced proceedings against Railtrack, claiming the value of the horses of some £9,000, but also damages for post-traumatic stress disorder, caused by having seen the remains of at least two of her horses on the railway line in the immediate aftermath of the accident. After this incident the iron gate was replaced by a fence.

At the trial of the action, lawyers acting for Dunnett asserted that Railtrack was liable because the workmen who attended to install the new gate had wrongly told her that the gate could not be kept locked.

For some inexplicable reason, Dunnett's lawyers made no case of the fact that the gate was not self-closing and that it therefore contravened Railtrack's statutory duties.

Unsurprisingly, the trial judge held it was not reasonable in the circumstances for Dunnett to have relied on the advice she had received from the workman. He was not in any particular position of authority, and if she had had any real concern on the subject, she should have gone to Railtrack's local office to speak to someone with a degree of authority.

Dunnett's claim was rejected and the matter came to the Court of Appeal. Counsel for Dunnett frankly admitted that he could not challenge the judge's findings that his client should not have placed reliance upon advice given by Railtrack's workmen. His quarrel, he noted however, was with the gate itself.

Railtrack, he argued, had failed to take adequate steps to ensure that the gate would firmly shut automatically. They had replaced the old gate that had an automatic shutting device with a new gate which did not.

The Court of Appeal, although in sympathy with these arguments, rejected the case, holding that it would not be fair to Railtrack to allow Dunnett to start again in the appeal court and deploy grounds which had been abandoned at the earlier trial.

The appeal was therefore dismissed. Ordinarily Railtrack would have become entitled to receive payment from Dunnett of all its legal costs.

However, Lord Justice Brooke examined the correspondence between the parties leading up to the appeal and noted that Railtrack had turned down flatly a request by Dunnett for alternative dispute resolution.

Clearly Railtrack was confident that it would win the appeal and could see no point in ADR, which would necessarily involve the payment of money.

Lord Justice Brooke noted that skilled mediators would be able to achieve results satisfactory to both parties in many cases which are quite beyond the powers of lawyers and courts to achieve.

Accordingly, he held that it would not be appropriate to make an order in favour of Railtrack in respect of its costs.