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I think the point about this decision is that the party had remained silent and did not give any reasons why they would not mediate. That made it impossible for the Court to decide whether the refusal to mediate was unreasonable. To avoid costs sanctions, it is important to explain for the benefit of the Court, why mediation is not appropriate, because the burden of proof is not onerous for the other party. There has been another decision on silence in the face of negotiations, supporting this. In Thinc Group Limited v Jeremy Kingdom (2013), the Court held that even though the Claimant had made a successful Part 36 offer, which the Court should take into account, the Court also needed to consider whether the costs consequences would be unjust. It was unreasonable for the Claimant to have sent bare rejections to the Defendant’s offers and not to have provided details of its costs.

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