Halsey v Milton Keynes General NHS Trust (2004)

This case involves a claim brought by Lilian Halsey against the NHS Trust after her husband who was being fed through a nasal drip died due to liquid food entering his lungs.

The results of the inquest were inconclusive as two medical experts disagreed about responsibility.

Mrs Halsey's solicitors claimed for bereavement damages but their offer to mediate to settle was rejected as the Trust stated that they did not accept any liability. At trial the claim was dismissed and the Trust won their case. However, Mrs Halsey's solicitors asked  for costs to be awarded following the decision in Dunnett v Railtrack as the Trust had refused to mediate.

The original trial judge refused to award costs against the successful defendant and the case was taken to the Court of Appeal.

The appeal judges concluded that the original judgement was correct as the Claimant "had come nowhere near showing that the Trust acted unreasonably in refusing to agree to a mediation".

In dismissing the appeal, the following reasons were cited:-

  • Although the subject matter was not unsuitable for mediation, the Trust believed that it had a strong  defence and reasonable grounds for that belief.
  • The court had not suggested or ordered mediation at any stage
  • Grounds for belief that the requests for mediation were "somewhat tactical"
  • The Trust's view that the costs of mediation would be disproportionately high compared with the value of the claim and the cost of a trial were relevant
  • The Judges believed that the Claimant had not discharged the burden of proving that mediation had a reasonable prospect of success. 

Although this case was later used by many who do not favour mediation, the judges, in their decision, affirmed the general support for mediation and pointed out that the Civil Procedure Rules include "encouraging the parties to use an alternative dispute resolution procedure if the court considers that appropriate and facilitating the use of that procedure".

A full transcript can be read at http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/2004/576.html


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