2.Main Content
The Dunnet v Railtrack case 2002
N.B. The most recent guidelines on ADR and the courts can be found in The Halsey Case 2004 (May 2004).
The case on this page has been included as it has contributed significantly to the development of case law on ADR, but it is no longer definitive.
This means that the Halsey judgement should be read before making a decision about whether ADR should be tried before going any further with the court process.
Dunnett v Railtrack plc (in railway administration)
February 2002
This case concerned a dispute between the claimant, Ms Dunnett, who owned a field next to a railway line, where she kept horses, and Railtrack. Railtrack replaced an existing gate which automatically shut by itself leading from the field to the line, with a gate which did not automatically shut by itself. As a result, the gate was left open, and three horses strayed on to the line and were killed. The dispute about liability was taken right through to the Court of Appeal, and in fact the defendant, Railtrack, won at the appeal stage on technical legal grounds, and the appeal was dismissed.
However, at the hearing at which permission to appeal was granted, the court stated that the parties should attempt mediation, a form of alternative dispute resolution (ADR) which seemed suitable to resolving this dispute. The defendant (Railtrack) refused outright to consider ADR, because they believed that they would win the case at appeal. In fact, although Railtrack did win the case at appeal, they were denied their costs.
The judges’ reason for this was that Railtrack had flatly refused to consider ADR, contrary to the requirements of the Civil Procedure Rules. CPR 1.4 states that the court should encourage the parties to use ADR, and CPR 1.3 states that the parties are required to help the court in furthering this objective. The notes to that rule in the White Book (2001) state that:
The encouragement and facilitating of ADR by the court is an aspect of active case management which in turn is an aspect of achieving the overriding objective. The parties have a duty to help the court in furthering that objective and, therefore, they have a duty to consider seriously the possibility of ADR procedures being utilised for the purpose of resolving their claim or particular issues within it when encouraged by the court to do so. The discharge of the parties' duty in this respect may be relevant to the question of costs because, when exercising its discretion as to costs, the court must have regard to all the circumstances, including the conduct of all the parties (r.44.3(4), see r.44.5).
This case made it clear that parties and their legal advisers have to recognise that they need to consider ADR, especially where this has been suggested by the court itself. Flatly refusing to consider ADR, as Railtrack did in this case, means that costs may not be given to the winning party.
Note to advisers
In the light of this case, and the case of Cowl v Plymouth City Council, it seems increasingly important that legal advisers encourage clients to consider ADR before proceeding with court action. ADR might well be an appropriate way to resolve the dispute: if it is not appropriate, or if the other party is unwilling to consider it, then an application will be made to court. However, it is important that legal advisers should record the fact that such a discussion has taken place, and the main reasons for whatever decision has been taken. This record may be needed to demonstrate to the court that ADR has been considered, and the reasons (if any) why it was not appropriate in all the circumstances of the particular case.
End of Section Back to top