Mediation

Nat West Bank v Feeney [20061 EWHC 90066 (Costs) Eady J

Case resolved by a Tomlin Order following mediation. The parties entered a mediation agreement containing standard terms stating that the mediator's fee would be borne equally by both parties and that each party would bear its own costs. Guidance notes to the mediation agreement suggested that if the parties wished the costs of the mediation to be taken into account in any court order there was no

settlement of mediation they should amend the standard terms accordingly.        No
amendment made in this case.

The Tomlin Order made following mediation made provision for the claimant to pay the defendant's costs of the counterclaim, to waive the claimant's entitlement to costs and various interim orders but did not deal explicitly with the mediation itself.

Master Campbell held that as a matter of general principle costs incurred in a mediation would form part of the costs of the action just as any reasonable costs negotiation would, CPD para 4.6(8). The mediation agreement in this case indicated the intention of the parties that such costs would not be recoverable unless expressly made so as a result of the mediation.

On appeal counsel for the defendants argued that the mediation agreement did not and should not be read as restricting the result that the parties might arrive at by way of mediation. The provisions of the Tomlin Order took precedence over the agreement and did not restrict the definition of costs. As such the costs of mediation were therefore included by necessary implication.

Appeal dismissed. The mediation agreement was binding on the parties and to argue that it was effectively discharged by the Tomlin Order was reading too much into the order.