Susan Dunnett v Railtrack plc (2002) CA

© Daniel Atkinson 2002      12 October 2002        

In Susan Dunnett v Railtrack plc (2002) CA Susan Dunnet’s appeal against the first instance decision was dismissed. Railtrack requested payment of its costs and in the usual course of events these would normally be awarded. The Court of Appeal was shown correspondence between the parties in which an offer to settle was made by Railtrack which it appeared Susan Dunnett did not consider was a reasonable nor fair offer. Susan Dunnett was acting as a litigant in person until she was assisted late in proceedings under the Bar’s pro bono scheme. When the judge at first instance had given his decision he had advised Susan Dunnett to explore the possibility of Alternative Dispute Resolution to "get shot of this case as soon as possible". Susan Dunnett had indicated she was willing to do so if Railtrack agreed.

When Susan Dunnett referred the suggestion to Railtrack they turned it down flat. They were not even willing to consider it. The matter came back before the first instance judge when Railtrack opposed Susan Dunnett’s application to extend time for filing the notice of appeal. He was critical of Railtrack. He recognised that Railtrack said they had limited funds to deal with a litigant who may well not be able to reimburse them; but they would have been better advised if they had kept those limited funds for fighting the substance of the case rather than taking the point that she was a little out of time in filing notice of appeal.

Lord Justice Brook, who gave the leading judgment, recognised that passions were running fairly high on Susan Dunnett’s side particularly as she had lost her horses in the accident on the railway and as a result of the attitude of Railtrack. He observed that this was a case, at least before trial, when a real effort should have been made by way of alternative dispute resolution to see if the matter could be satisfactorily resolved by an experienced mediator, without the parties having to incur the heavy legal costs of contesting the matter at trial. There was no indication that this had been suggested by the Court, but in due time the Court did make the suggestion as indicated above.

Lord Justice Brooke held that the CPR places a duty on the parties themselves to further the overriding objective under CPR 1.4 as stated in CPR 1.3. CPR 1.4 sets out the duty of the Court to further the overriding objective by active case management including encouraging the parties to use an alternative dispute procedure.

Railtrack’s case was that it refused to contemplate ADR because this would necessarily involve the payment of money and Railtrack was not willing to contemplate payment over and above what had already been offered.

Lord Justice Brooke made a significant statement on the nature of mediation and the role of Mediators. He stated that skilled mediators were now able to achieve results satisfactory to both parties in many cases which were quite beyond the power of lawyers and courts to achieve. There were cases where intense feelings had arisen, for instance in relation to clinical negligence claims. But when the parties were brought together on neutral soil with a skilled mediator to help them resolve their differences, the mediator may be able to achieve a result by which the parties shake hands at the end and feel that they have gone away having settled the dispute on terms with which they were happy to live. A mediator may be able to provide solutions which were beyond the powers of the court to provide. In claims against the police, which can give rise to as much passion as Dunnett’s claim where her precious horses were killed on a railway line, by which an apology from a very senior police officer was all that the claimant was really seeking and the money side of the matter fell away.

Lord Justice Brooke emphasised the duty of lawyers in advising their clients of the overall objective. If they turn down out of hand the chance of alternative dispute resolution when suggested by the court they may have to face uncomfortable costs consequence."

Lord Justice Brooke then gave judgment refusing to award costs to Railtrack. He held that in the particular circumstances of the case, given the refusal of Railtrack to contemplate alternative dispute resolution at a stage before the costs of the appeal started to flow, it was not appropriate to take into account the offers that were made. The appropriate order on the appeal was no order as to costs.