In ADS Aerospace Limited v EMS Global Tracking Limited [2012] EWHC 2904 (TCC), Mr Justice Akenhead sitting in the Technology and Construction Courtheld that a successful party was not unreasonable to refuse mediation and should not be penalised in costs on that basis. The judge’s approach was similar to the Court of Appeal in Swain Mason v Mills & Reeve (a firm) [2012] EWCA Civ 498 (see post), and demonstrates that, applying the non-exhaustive Halsey factors, a refusal to mediate may, in some circumstances, be justified. Mr Justice Akenhead cited the lack of prospects of settling the matter at mediation and the proximity to trial as influencing factors.
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