In Murray v Bernard the claimant refused the defendant's offer to mediate. This had been noted at an interim Court hearing, and this was recorded in the Order issued by the Court.
After the hearing, the claimant changed its mind but the mediation did not take place because the defendant then decided it was not ready to mediate.
The claimant was ultimately successful, and despite the defendant's protestations, was entitled to recover its costs.
The Court said that this was not a case where the claimant had refused to mediate and that on the facts, the claimant should not be penalised.
COMMENT: Unreasonably refusing to mediate remains a risky strategy. Each case will turn on its facts, but it seems the relevant factors in the case were that (a) the claimant changed its mind regarding mediation and (b) it was the defendant who then declined to mediate.
