Burchell v Bullard (2005)

This case concerned a builder, Mr Burchell, who contracted with Mr & Mrs Bullard to build an extension to their house. He claimed approximately £18,000 from the Bullards which they refused to pay stating that they were unhappy with the quality of his work.

The Bullards counter-claimed over £100,000 which was eventually judged to be worth £14,000. Thus Burchell received £5,000 at the end of a 5 day hearing.

However, the costs of the case were in excess of  £160,000 (at this stage Burchell's costs were approximately £98,000 and the Bullard's costs were approximately £70,000) and the appeal in 2005, at even further cost, concentrated on who should be paying all of those costs.  The court was made aware that Burchell had suggested mediation in 2001 when the dispute first arose but the Bullards refused to mediate on the basis that their case was too complex. Burchell had also suggested mediation with regard to the costs issue but was again refused. Whilst the Appeal Court judges were reluctant to penalise the Bullards on the same basis as was applied in Dunnett v Railtrack (since this case was heard after their initial refusal to mediate), they ordered that the Bullards should pay their own costs in full plus 60% of Burchell's costs and the entire cost of the appeal (£22,000).

A transcript of the judgement can be found at http://www.bailii.org/ew/cases/EWCA/Civ/2005/358.html but some of the more interesting comments concerning mediation are either summarised or reproduced in full below.

  • The defendants' belief that their case was so watertight that they need not attempt ADR was unreasonable
  • Their claim that the case was too complex for mediation was "plain nonsense"
  • "The costs of ADR would have been a drop in the ocean compared with the fortune that has been spent on this litigation"
  • "The defendants cannot rely on their own obstinacy to assert that mediation had no reasonable prospect of success"
  • "Mediation has established its importance as a track to a just result running parallel with that of the court system. Both have a proper part to play in the administration of justice. The court has given its stamp of approval to mediation and it is now the legal profession which must become fully aware of and acknowledge its value. The profession can no longer with impunity shrug aside reasonable requests to mediate. The parties cannot ignore a proper request to mediate simply because it was made before the claim was issued. With court fees escalating it may be folly to do so."

 

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