Medical negligence: Costs order where the parties failed to comply with an order for informal settlement conference / mediation.

Old v Miniter (No 2) [2020] NSWDC 519 (on Caselaw) followed on from a judgment in a medical negligence claim in which the plaintiff proved breach of duty but failed on causation, following a hearing of 8 days duration. (See Old v Miniter [2020] NSWDC 401.)

As noted in the costs judgment at [11], a pre-trial interlocutory order had been made by the Judicial Registrar requiring that the parties participate in an informal settlement conference, or a mediation, to be held by a certain date (30 September 2019). Not only was there a failure of compliance with that order, but the parties failed to bring the fact of such non-compliance to the attention of either the List Judge or the Judicial Registrar in accordance with the Court’s Standard Orders and prevailing practice, so that appropriate remedial orders could have been considered. Ultimately the parties took up the suggestion of the trial judge that an intra-trial mediation should take place however following that the proceedings remained unresolved.

The trial judge commented at [23] that:

In my view, the case called for a mediation to take place, if for no other reason than to provide the defendant’s legal representatives, in the face of their entrenched stance on settlement, with the opportunity to explain to the plaintiff, in the presence of his own legal representatives, the reasons as to why no monetary offer would be forthcoming from the defendant. That course could possibly have persuaded the plaintiff to take a more pragmatic approach in either reducing his financial expectations in relation to an amount that might have attracted the defendant to a commercial settlement position, or alternatively, to abandon his case in the face of a steadfast refusal on the part of the defendant to negotiate on account of the content of the expert evidence that had been served.

The trial judge overed that the plaintiff pay the defendant’s costs of the proceedings on the ordinary basis, but such costs liability should be limited to costs properly incurred by the defendant up until 30 September 2019 and not thereafter; such that the defendant pay his own costs incurred in defending the proceedings after 30 September 2019.