Last year Tarquin, a young solicitor who works for a very eminent legal firm that attaches great importance to its employees behaving correctly at all times bought an expensive two-week skiing holiday package at the “Swiss Alpine Hotel” from Roustabout Travel, a mismanaged company which is owned by Robert Golightly.
As well as promising an excellent hotel and skiing facilities, the Roustabout’s brochure stated that the Swiss Alpine’s après ski facilities are excellent. Tarquin subsequently enjoys excellent meals and scheme facilities but otherwise the brochure was rather full of exaggerations and, with some justification, he considers that he has been misled. misled. Additionally, he made some inappropriate advances to the hotel manageress which were not well received.
On his return to the UK Tarquin issues proceedings in the County Court. His rather vague claim is limited to £3000 claiming damages for loss, disappointment, distress and inconvenience which means that it is dealt with as a small claim.
Having spoken to the aggrieved manageress Golightly makes it clear that he intends to “vigorously contest” the proceedings. He also deduces that Tarquin would not want his inappropriate knowledge towards the hotel manageress to become public knowledge.
Golightly is also very mindful that Roustabout travel has been the subject of a number of complaints. ABTA are keeping an eye on him and he needs to try to avoid any adverse publicity. He is all too aware that at some point Tarquin mentioned that he had been “surfing the complaints sections of the Internet” and was aware of ABTA’s concerns about Roustabout.
In his more objective moments Tarquin acknowledges that even if his claim succeeds, he is unlikely to be awarded very much money and that his £3000 claim is a little optimistic. Belatedly he comes to realise that in the light of his bad behaviour the last thing he wants is adverse publicity.
Four months after Tarquin files his claim during a brief preliminary court hearing a judge strongly hints that this is a case that would best be resolved through mediation. Initially Tarquin is a little aggrieved but the judge points out that the relevant, quite standardly worded contract allows for the possibility of either mediation or arbitration. The judge also refers to some decided cases and ventures the opinion that even if Tarquin were to succeed in respect of each and every aspect of his claim it is unlikely that he would be awarded more than “something in the region” of £800.00 in compensation. The judge strongly suggests that Mediation is the way forward. Tarquin and Golightly get the message and an online mediation is arranged.
In the course of a three-hour mediation, because they are free from the legal niceties that they would have had to observe in formal court proceedings, each party makes his position perfectly clear. Tarquin mentions that court proceedings would result in adverse publicity for Roustabout and given that some aspects of the brochure were very inaccurate, ABTA might very well investigate. Equally, Golightly emphasises Tarquin’s inappropriate behaviour and suggests that in the course of proceedings this might attract unwelcome publicity.
Privately, Tarquin concedes to the mediator that his behaviour towards the manageress was “a bit over the top”. Equally, Golightly privately admits that in some respects his brochure was “a bit inaccurate”. The net effect is that although they are both very reluctant to make any form of admission, each party is all too well aware of the deficiencies in their respective positions. The matter is settled on the basis that Tarquin accepts Golightly’s offer of a £1000.00 long weekend break in Ibiza.
Taking up the online option means that a reasonable, very cost-effective settlement has been negotiated. Tarquin notes that the matter has been resolved much more quickly than if the small claims procedure had been followed through to its conclusion. Golightly’s main regret is that mediation was not considered earlier. He is all too aware that even though the court small claims procedure is designed to be layperson friendly, he has still spent a disproportionate amount of time on it that he could have used more productively.
Costs incurred and time expended by Tarquin and Golightly in connection with the court proceedings
Initial court fee – £100.00
Court case related time spent over a period of four months
Initial research into the small claims system, downloading the relevant court documentation, completing the claim form filing it, and making payment –2 hours;
Subsequently in the course of making five telephone discussions with the court, some of which last as much as 30 minutes, preparing for the initial hearing, travelling to and from and waiting at court, and attending the short hearing, Tarquin spends around 4 1/2 hours and has to take some time off work that is counted against his annual leave entitlement. Also, Tarquin eventually calculates that because a good deal of his salary is paid in commission, as at the date of the preliminary hearing in real terms the case cost him around £350.00
If this matter was to go to trial a further court fee would be payable and it is likely that the attendant processes would take up another four or five hours of his time, this in a case where even if successful Tarquin would at best only be awarded a few hundred pounds. Roustabout’s finances are shaky and even if additional, costly and time-consuming court enforcement procedures are pursued, there is no guarantee that he would receive anything.
Initial Court Costs – nil but in running his business he works on the basis of a notional hourly rate of £50 per hour that was suggested by his accountant.
Court case related time spent over a period of four months
As at the end of the preliminary hearing, Golightly had spent an additional two hours researching the court small claims system, reading the documentation served on him, speaking to his solicitor (who luckily for him did not charge) and drafting and filing his response. Subsequent telephone conversations with the court, preparing for the initial hearing and the incidental travel and waiting time take up an additional three hours or so which means that in pure economic terms, to date the case has cost him between £250 and £300. Given that much of this time would have been used to generate revenue, in all probability his “loss” is much higher.
Time and money incurred in respect of the mediation
Mediation fee – £350.00 plus VAT divided equally between the two parties.
Liaison between the parties in respect of arranging the mediation which took place in the evening and paying the mediator – 30 minutes per party
Time spent in the mediation during which all matters are given a thorough airing and a mutually acceptable agreement is formulated, drafted and signed – 1.5 hours per party
The total time expended by the parties in respect of the court case up to and including the preliminary hearing was in excess of 10 hours.
The total time expended by the parties up to and including the conclusion of the mediation was around four hours. The mediation was promptly conducted on a Saturday when neither party was working and because it was conducted online, there was no additional travel or waiting time or transportation costs. Golightly has had to absorb the cost of the £1000 holiday but this by no means inconsistent with the level of compensation that he might otherwise have been ordered to pay.
Principal Director of ASM PLUS, civil/commercial, workplace, employment, family and educational mediator and trainer with a judicial/legal background. He has knowledge and expertise in dispute resolution in a wide range of areas and disciplines and mediates online.