Master Marsh’s Decision on ADR and Costs in Jones v Tracey [2023] EWHC 2256 (Ch)

In a recent case, Jones v Tracey [2023] EWHC 2256 (Ch), Master Marsh made a significant ruling regarding the treatment of correspondence between lawyers in the context of alternative dispute resolution (ADR). The master held that such correspondence should be regarded as ‘open’, regardless of whether it is marked ‘without prejudice’. Additionally, the master refused to penalize the successful claimant for failing to engage with mediation.

The case arose from a probate claim, where directions were given for the parties to file written submissions on costs. The third defendant attempted to rely on a letter marked ‘without prejudice’ in relation to the issue of costs. However, the master found that the letter was not intended to be without prejudice and could be relied upon by the third defendant.

The third defendant argued that the claimant’s failure to respond to an offer to mediate constituted unreasonable conduct warranting a costs order against the claimant. However, the master found that the claimant’s conduct was not such as to warrant a deduction from their costs, citing various reasons including the claimant’s earlier attempts to settle and the third defendant’s own unsatisfactory conduct.

The decision sheds light on the approach to be taken when determining the status of correspondence in relation to ADR. However, the master’s reference to the merits of the claimant’s case as a justification for not penalizing them in costs has raised some concerns. It is hoped that the Court of Appeal will address this issue in the upcoming case of Churchill v Merthyr Tydfil County Borough Council.

Overall, the case highlights the importance of objectively assessing communication in the context of ADR and provides an opportunity for further clarification on the issue of compulsory ADR in the English civil justice system.