2. Practice Direction 18.1 & 18.2: Personal Injuries List & Employees Compensation Cases
Personal Injury and Employees Compensation cases are not covered by PD 31. Practice Direction 18.1 and Practice Direction 18.2 covers these types of cases and lays down far more detailed provisions. The idea is to encourage early settlement by way of mediation.
Before the commencement of proceedings, parties should explore settlement by making genuine attempts to engage in settlement negotiations by without prejudice correspondence, by structured without prejudice face-to-face meetings, or by any other manner agreed to by the parties.
If such negotiations do not result in any settlement after a reasonable time, the parties should proceed to explore ADR by mediation or some other form of ADR.
It is expressly stated that settlement negotiations that take place only between the parties themselves, without an arbitrator or mediator present, do not amount to ADR.
In exercising its discretion on costs, the Court takes into account all relevant circumstances. These circumstances would include any unreasonable failure of a party to engage in mediation where this failure can be proven by materials that are admissible to the court. Legal representatives should advise their clients of the possibility of the Court making an adverse costs order where a party unreasonably fails to engage in mediation.
Similar to PD 31, the Court will not make any adverse costs order against a party on the grounds of unreasonable failure to engage in mediation where:
(1) The party has engaged in mediation to the minimum level of participation agreed to by the parties or as directed by the Court prior to the mediation.
(2) A party has a reasonable explanation for not engaging in mediation. If active without prejudice settlement negotiations are currently going on between the parties, this would be likely to provide such a reasonable explanation. However, where such negotiations have broken down, the basis for such explanation will have gone and the parties should then consider the appropriateness of mediation. If the parties are actively engaged in some other form of ADR to settle the dispute, this may also provide a reasonable explanation for not engaging in mediation in the meantime.
The Court may, on the application of one or more of the parties or on its own motion, stay the proceedings or any part thereof for the purpose of mediation for such period and on such terms as it thinks fit.
Where the Court stays the proceedings, the Plaintiff must promptly inform the Court if a settlement is reached and the parties should take the necessary steps to conclude the legal proceedings formally.
For details, please go to the Judiciary’s website.