The recent case of H v W
has stirred things up a bit in relation to the cost consequences of a party’s
refusal to engage in court directed mediation. In this case, the husband
successfully appealed against a final order with his ex-wife and has been awarded
his legal costs. The District Judge had awarded wife spousal maintenance
together with 25% of the husband’s annual bonus, both on a ‘joint lives’ basis,
i.e. until one party dies or remarries, or a further order of the court is
The husband appealed and
the judge gave permission for an appeal hearing in relation to his bonus,
giving an indication that there should be a cap on the amount of the bonus
share. The judge also directed that the parties engage in mediation in order to
try and resolve matters amicably. The husband offered to pay the costs of
mediation, but the couple could not agree on a mediator to conduct the session.
The wife also wanted her legal representatives to be present at the mediation
The wife then
unsuccessfully applied for a legal costs order which would oblige the husband
to pay her costs. The judge refused her application on the grounds of the
wife’s unreasonable approach and her insistence on using a top priced mediator
and that her legal representatives be present. The judge explained that this
was neither necessary nor reasonable in his experience, would be unusual and
arguably unhelpful. The judge again advised the couple to engage in mediation.
The couple did not attend
mediation and the husband’s appeal proceeded to a final hearing. The husband’s
appeal was successful and the judge set a cap on the bonus to £20,000 per
However, in the course of
these proceedings, both the husband and wife had incurred substantial legal
costs. The husband’s costs were £22,320 and the wife’s were £25,371. The wife
had been advised that she faced an order requiring her to pay the husband’s
legal costs as result of her unreasonable approach to mediation. The judge
approved this order.
The case clearly shows the
importance of being agreeable to attending mediation. If the court directs you
to go, and there’s no justifiable reason not to, then you should take this
direction seriously and attend. It is important to remember however, that it is
your right to have your solicitor present at mediation, and in some
circumstances, this may actually be appropriate.
However this case once again highlights the importance of parties attending
mediation to avoid the cost and time involved in formal proceedings.