Mediation in Public Law Cases

1. Mediation in Public Law Cases Toolkit & Road Map Road Map

2. TOOLKIT & ROAD MAP This 3-part toolkit & road map sets out the legal framework underpinning the use of mediation in public and administrative law cases and provides a checklist of points for successful use of mediation in these cases.  Release dates: Toolkit - Part 1 – Monday 13th May 2019 – Available here Toolkit – Part 2 – Monday 20th May 2019 – Available here Road Map – Tuesday 28th May 2019 We hope this series will help both litigators and mediators use mediation more effectively in public law cases.

3. Road Map INDEX • INTRODUCTION • Are there particular benefits or added value in mediation? • Who should propose mediation? • When should mediation be proposed and conducted? • What practical arrangements for mediation should be made? • Should a response be given to a proposal to mediate? • How should any settlement agreement be prepared? • What should be done about costs? • IS LEGAL AID AVAILABLE FOR mediation? • Is the case unsuitable for mediation? • What should BE done TO START THE MEDIATION PROCESS?

4. INTRODUCTION RICHARD PRICE OBE QC CHRISTOPHER BAKER Our toolkit and road map are intended to help unlock the significant potential for successful mediation in public and administrative law disputes, including judicial review claims. Public bodies of all kinds and the organizations and individuals with whom they interact – and their respective lawyers – should make much fuller use of the benefits of mediation in this field. The greatest scope for this is in relation to disputes where there is something to be resolved beyond the ordinary legal confines of the court’s jurisdiction. In part, responsibility may lie with the mediators themselves for the unexplored and untapped potential. Few mediators or their professional bodies highlight involvement in public and administrative law disputes. They tend to concentrate on areas such as commercial, consumer, workplace and family disputes. It is perhaps true that relatively few mediators have a wealth of experience and understanding about public law, public administration or judicial review procedure. This is where 4-5’s Mediation Group can help. This toolkit sets out the key elements of the legal framework which underpin the use of mediation in public and administrative law cases. The road map which follows contains a checklist of points for successful use of mediation in these cases. We hope that our toolkit and road map help both litigators and mediators use mediation more effectively in this field. This in-depth article is in three parts, being published sequentially.

5. Are there particular benefits or added value in mediation? • Cases where there is likely to be an ongoing relationship, eg with contractors or suppliers or between different governmental bodies. • Arrangements which would be especially risky or costly to abort or transfer, such as major projects or construction disputes. • Where both parties need to find an agreed or continuing plan for care or other welfare provision, egto cater for special needs. • One-off cases, including those where a monetary claim is made, which do not raise broader issues of administration. • Other cases where the parties could benefit substantially from agreeing a remedy or a course of action that a court would be unable to offer, eg in which an apology or public retraction of offending statements may be more important than a finding of legal rights. • Situations in which it would be advantageous to achieve a confidential settlement of a dispute with a particular claimant, in such a way that it reduces the chances of other potential claimants learning of the challenge or settlement. • Claims involving balancing various considerations, which make the outcome of litigation uncertain. • Cases where mediation could offer clear cost benefits or avoid lengthy (including appellate) litigation.

6. Who should propose mediation? • The claimant should in general state any proposals for mediation or other ADR in the pre-action protocol letter before claim (see egJR Protocol, Annex A, item 9). • If the claimant has not proposed mediation or other ADR, the defendant should in general set out any proposals it has in the pre-action protocol response letter (see egJR Protocol, annex B, item 7). • Both parties in JR claims are under an obligation to see that the court’s jurisdiction is in general used only as a last resort; in some cases, this may be a heavy obligation – see R (Cowl) v Plymouth City Council, above.

7. When should mediation be proposed and conducted? • Mediation can be proposed or conducted at any stage in proceedings. • In JR, given the short timescale for issuing a claim and the inability of the parties to extend time by agreement, it may be necessary to issue the claim but helpful to request the court to adjourn or stay proceedings at the permission stage. • A defendant in a JR claim may, however, wish to wait to see if the court grants permission before agreeing to mediate. • When considering the grant of permission, the court may sometimes require the parties to explain why mediation or other ADR has not been considered or agreed.

8. What practical arrangements for mediation should be made? • Consider the choice of mediator and whether specialist public and administrative law expertise is required. • Ensure all the relevant participants are parties to the mediation agreement, especially where several governmental and quasi-governmental bodies are involved. • Clarify whether those responsible for taking or confirming governmental decisions will be present or will have authorized or be available to authorize settlement; and if not, clarify what process may be required after the mediation. • If any pending JR claim is likely to settle, inform the Administrative Court as soon as the possibility of settlement becomes apparent (see Administrative Court Judicial Review Guide, para 22.6.1).

9. Should a response be given to a proposal to mediate? • Yes – see PGF II SA v OMFS Company 1 Ltd, above. A failure to respond at all would be unreasonable in itself and therefore a factor in the court making any costs order.

10. How should any settlement agreement be prepared? • If litigation is in progress, consider a Tomlin order unless the claim is either to be discontinued or withdrawn, or substantive relief is to be requested by consent. • In the case of statutory bodies whose powers are limited by statute, such as local authorities, consideration should be given to ensuring the proposed settlement is intra vires and the inclusion in the settlement of an acknowledgement of statutory power to make the agreement. • Consider if a confidentiality clause is to be included as part of the settlement agreement. • If the agreement does not fully or finally settle any present dispute or other issue, make clear this is the case and so far as possible how it is to be resolved. • If the Administrative Court is to be asked to make an order by consent, prepare the draft order marked “By consent” accompanied by an agreed explanatory note explaining why the order should be made (see Administrative Court Judicial Review Guide, para 22.4).

11. What should be done about costs? • The parties should attempt to reach agreement on costs wherever possible and in advance of asking the Court to resolve costs. • If costs can be agreed, include this in the settlement agreement. • If the substantive claim has settled but the parties are unable to agree costs, follow the Administrative Court Office Costs Guidance (Annex 5 to the Administrative Court Judicial Review Guide; see also ibid para 23.5). This provides for costs to be determined by the court on the basis of written submissions. •  Any such submissions should specifically address how the claim and the basis of settlement fit within the principles in M v Croydon LBC [2012] EWCA Civ 595; [2012] 1 WLR 2607 and R (Tesfay) v Secretary of State for the Home Department [2016] EWCA Civ 415; [2016] 1 WLR 4853. • Where a claimant has been wholly successful in terms of the relief sought, all the claimant’s costs would generally be awarded, unless there is good reason to the contrary. • Where a claimant has succeeded only in part, the court would normally determine questions such as how reasonable the claimant had been in pursuing the unsuccessful claim, how important it had been compared with the successful claim, and how much the costs had been increased as a result of the claimant pursuing the unsuccessful claim. • It may be more difficult to determine such issues where there has not been a trial. • Where there is not a clear winner, much will depend on the particular facts. • It may help in some cases to consider, if it is tolerably clear, who would have won if the matter had proceeded to trial. • There is often much to be said for concluding that there should be no order for costs. • In a case where there has been some compromise which does not actually reflect the claimant's claims, the Court is often unable to gauge whether there has been a successful party in any respect and, if so, who it is. Accordingly, there is an even more powerful argument that the default position should be no order for costs. In some cases, however, it may well be sensible to look at the underlying claims and inquire whether it was tolerably clear who would have won if the matter had not settled. If it is, then that may well strongly support the contention that the party who would have won did better out of the settlement, and therefore did win.

12. IS LEGAL AID AVAILABLE FOR mediation? • Section 8(2) Legal Aid, Sentencing and Punishment of Offenders Act 2012 defines legal services to include “advice and assistance in the form of … (b) mediation and other forms of dispute resolution.” • Criteria set by the Lord Chancellor under s11, to determine who qualifies for civil legal services, are required by sub-s(5) to “reflect the principle that, in many disputes, mediation and other forms of dispute resolution are more appropriate than legal proceedings”. • The Lord Chancellor’s Guidance, issued under s4, effective from 27 January 2014, provides for the costs of a mediator or arbitrator to be claimed as a disbursement under a certificate for full representation (para 6.17).

13. Is the case unsuitable for mediation? • Urgent cases, particularly those requiring interim relief. • Other cases where a time limit, particularly under CPR 54.5, may expire. • Where a judicial determination is required, eg a question of statutory interpretation or important legal principle. • Are there any other good reasons why, in the circumstances, either mediation is unnecessary, or litigation is preferable for the party responding?

14. What should BE done TO START THE MEDIATION PROCESS? Contact the Clerks at 4-5 Gray’s Inn Square on 020 7404 5252 or clerks@4-5.co.uk

15. 4-5 Mediation Group Putting people and client service first Birmingham 2nd Floor Two Snow Hill Birmingham B4 6GA clerks@4-5.co.uk Tel +44 (0)121 231 7430 London 4-5 Gray’s Inn Square Gray’s Inn London WC1R 5AH DX No 1029 LDE clerks@4-5.co.uk Tel +44 (0)20 7404 5252