The following cases concern a failure to negotiate rather than failure to mediate or use ADR as such. They display a consistent approach from the courts to failures to further the overriding objective.

Mars v Teknowlege (No 2)

The costs order reflected the claimant’s unreasonable conduct in accordance with CPR 44.3(5), and in particular the fact that the claimant had issued in a heavy handed manner, at a time when the defendant was striving to settle the dispute.

Liverpool City Council v Chavasse

Fifty per cent of the claimant’s bill was disallowed because he had failed to make a serious attempt to negotiate with the defendant before the proceedings.

Phoenix Finance Ltd v Federation International de l’Automobile

An unsuccessful claimant had failed to send a letter before action to parties it was joining into existing proceedings. Even though no pre-action protocol applied to the case, an order for indemnity costs was appropriate.