“What I have found
profoundly unsatisfactory, and made my views clear in the course of argument,
is the fact that the parties have between them spent in the region of £100,000
arguing over a claim which is worth about £6,000. In the florid language
of the argument, I regarded them, one or
other, if not both, of them, as "completely cuckoo" to have engaged
in such expensive litigation with so little at stake.
At the time of writing
this judgment I rightly do not know whether any, or if so what, attempts have
been made to settle this case and the remarks that follow are of general
application. I raise that matter again in this judgment to make the point, as
firmly as I can, that this is a paradigm case which, if it could not have been
settled by the parties themselves, customer and dealer, then it behoved both
solicitors to take the firmest grip on the case from the first moment of
instruction. That, I appreciate, may not always be easy, but perhaps a
copy of this judgment can, at the first meeting, be handed to the client,
bristling with righteous indignation, in this case the customer who has paid a
small fortune for a motor car which does not meet his satisfaction, and the
dealer anxious to preserve the reputation of his prestige product.
"This
case cries out for mediation", should be
the advice given to both the claimant and the defendant. Why?
Because it is perfectly obvious what can happen. Feelings are running
high, early positions are taken, positions become entrenched, the litigation bandwagon
will roll on, experts are inevitably involved, and, before one knows it, there
will be two/three day trial and even, heaven help them, an appeal. It is
on the cards a wholly disproportionate sum, £100,000, will be to fight over a
tiny claim, £6,000.
And what
benefit can mediation bring? It brings an air
of reality to negotiations that, I accept, may well have taken place in this
case, though, for obvious reasons, we have not sought to enquire further into
that at this stage. Mediation can
do more for the parties than negotiation. In this case the sheer
commercial folly could have been amply demonstrated to both parties sitting at
the same table but hearing it come from somebody who is independent. At
the time this dispute crystallised, the car was practically brand new. It
would not have been vastly different from any demonstration car. The
commercial possibilities are endless for finding an acceptable solution which
would enable the parties to emerge, one with some satisfaction, perhaps a
replacement vehicle and the other with its and Audi's good name intact and
probably enhanced, but perhaps with each of them just a little less
wealthy.
The cost of
such a mediation would be paltry by comparison with the costs that would mount from the moment of the issue
of the claim. In so many cases, and this is just another example of one,
the best time to mediate is before the litigation begins.
It is not a
sign of weakness to suggest it. It is the hallmark of commonsense.
Mediation is a perfectly proper adjunct to litigation. The skills are now
well developed. The results are astonishingly good. Try it more
often.”
Lord
Justice Ward in
Egan
and Motor Services (
http://www.bailii.org/ew/cases/EWCA/Civ/2007/1002.html
[Emphases are ours]