13th February 2017
Simon Browne QC, representing 599 holidaymakers who fell ill at a resort, successfully appealed against a decision certain claimants should have engaged in ADR prior to progressing their claims through the courts. Mr Justice Singh in delivering his judgement enunciated two important points of principle concerning the use of ADR.
599 holidaymakers sued First Choice Holidays for illness and a ruined holiday whilst at a hotel in Turkey. 152 claimants were not ill, but travelled with those who were and thereby had their holiday ruined in addition to poor standards of the holiday itself. The defendant successfully argued before Costs Judge James that the non-ill claimants had unreasonably failed to enter into ADR prior to entering into Conditional Fee Agreements with their solicitor, and/or had failed to engage in ADR rather than progressing with their civil claims.
On appeal to the High Court, Mr Justice Singh, sitting with the Senior Costs Judge Master Gordon-Saker, overturned the decision of Costs Judge James, and ruled upon two important points of principle with respect to ADR.
First, Mr Justice Singh held that the Costs Judge was not entitled to go behind the costs order, in breach of Lahey v Pirelli  1 WLR 998 and Halsey v Milton Keynes  1 WLR 3002. Whilst consideration of ADR is certainly a factor to be considered, Mr Justice Singh held:
I do not consider the position has yet been reached that the mere availability of ABTA is enough to deny a successful party costs where they have a costs order.
Secondly, Mr Justice Singh ruled against the defendants’ submission that the point of principle they were advancing was applicable to claimants even before they had entered into a CFA (for example, instructing their solicitors to construct a letter of claim). It was being suggested by the defendant that to enter a CFA prior to choosing a voluntary arbitration was inherently unreasonable. This proposition was rejected by the Judge, stating it was a point of principle that went too far.