Environmental mediation

Stephen Sykes | 12 years ago

After eleven grueling years of environmental litigation costing £6M, and one prior (but failed) attempt at mediation in 2008, it was finally announced on Friday April 16th 2010 that mediation had succeeded in resolving the dispute.

Corby District Council agreed to settle, for an undisclosed sum, its dispute with 19 young people with birth defects alleged to have been caused by the Council’s negligent remediation of the Corby steelworks site in the 1980s and 1990s.

1.    Background

In July 2009 Mr. Justice Akenhead of the Technology and Construction Court, part of the High Court, ruled that Corby Borough Council was “extensively negligent” in its remediation of the 680 acre Corby steelworks.

The judge decided, in a 265 page judgment, that the contaminants   mobilised on the unwashed wheels of uncovered lorries and the unwashed boots of contractors during the clean-up of the site had the ability to cause birth defects.  In its management of the remediation of the steelworks, Corby BC was found to be negligent, to have committed a public nuisance (an unreasonable activity which adversely affects a large group of people) and to have breached its statutory duties to manage waste safely.

The Court did not, however, decide that the Council’s negligence actually caused the birth defects suffered by the complainants. As one commentator put it , the judgment still left the complainants with “much work to do” to win their case. The Council disputed the High Court judgment, and decided to adopt a “twin track” approach: to take the case to the Court of Appeal, as well as to pursue mediation.

2. What is mediation?

Mediation is a voluntary way of resolving disputes. An independent mediator, often a barrister who is a QC, is appointed to help the disputants to bring their dispute to an end.

The mediator facilitates dialogue between the parties by meeting with each of them on a number of occasions during the mediation, to get to the heart of the dispute, explore the scope for compensation and, eventually, settle upon a sum which is acceptable to both parties. If and when agreement is reached, this is recorded in a legally binding settlement agreement, the terms of which are confidential.

The mediation process can often involve 2 or 3 days of intense negotiations. It is generally worthwhile because 70–80% of mediations result in settlements . In the case of the Corby dispute, the mediation commenced on Tuesday, 12 April 2010, and a settlement agreement was announced on Friday, 16 April 2010.

3. What was decided?

According to Mr. Des Collins, solicitor for the families, the Corby mediation agreement:
“…recognises the many years of emotional and physical suffering the 19 families have endured and will endure……….Importantly it also provides a financial award which will help towards healthcare costs and loss of earnings”.

Corby District Council’s Chief Executive, Mr. Chris Mallender, said:

“The council recognises that it made mistakes in its clean-up of the former British Steel site years ago and extends its deepest sympathy to the children and their families……and [the] agreement will mean they can now put their legal battle behind them and proceed with their lives with a greater degree of financial certainty.”

One of the parents of the young people, Louise Carley (whose daughter, Ashleigh, aged 11, has problems with her right hand and arm) said:
“It’s a good outcome after a long battle. I thought they would appeal, they kept saying they were going to. This is closure, it means we can move on with our lives…. It’s the first time they have said sorry and that means more than anything.”

4. How much will Corby DC have to pay?

The financial terms of settlement remain confidential, and the approval of the Court is needed in respect of the compensation for the younger children.
However, following the High Court judgment last summer, the claimant’s barrister said:

“It’s very difficult at this stage to identify a figure but it’s unlikely the children will be awarded less than £100,000 each and a number of the awards will be considerably larger than that. They’re not just being compensated for the emotional and physical disabilities – this will affect them for the rest of their lives.”

It has also been reported  that the same barrister had expressed the hope that each claimant will receive £500,000 of compensation. On this basis, a total settlement of several millions of pounds might be paid to the 19 young people concerned.

Indeed, as the High Court judgment made clear, contaminated dust from the steelworks was spread around Corby and its environs. Hence, the prospect of other claimants with birth defects coming forward for redress was always possible . Indeed, at the time of the High Court judgment Des Collins said:

“there are a number of other families who have come forward who also believe their children were affected by the toxic waste and legal teams will look closely at their cases over the coming weeks”.

5. Why didn’t mediation work first time around in Corby?

The history of mediation discussions between the parties in Corby has been commented upon by Eric Sutter of Park Chambers . The Council wished to defer a decision about mediation until experts’ reports (and there were many of these) were exchanged. After the exchange of expert evidence, Corby District Council refused, in the summer of 2008, the offer of mediation because it concluded that mediation would be “highly unlikely to be productive in reaching a conclusion”.

In October 2009 the solicitors for the families applied to the High Court to have their costs awarded on an indemnity basis . It is unusual to have costs awarded on an indemnity (as opposed to the standard basis), and for this the claimant would need to show either reprehensible behavior on the part of the other side, or that there is something which takes the conduct of the paying party “out of the norm ”. Mr. Akenhead J. refused the claimant’s application as follows:

“Given the broad nature of the Claimants’ expert evidence on breaches of duty and its linkage to the dissemination and dispersal of dust and mud, I do not consider that [the Council’s] position was unreasonable. Hindsight shows that [the Council] was wrong but one must judge the decision to refuse ADR [alternative dispute resolution] at the time that it was under consideration………..It was not unreasonable to form the view that mediation would not have produced a settlement.”

6. Unanswered questions?

If the Corby mediation had failed, and the case had gone to the Court of Appeal in the autumn, it might have answered some important questions which the High Court did not tackle, in particular the question of the foreseeability of the particular injury.
To bring a successful negligence claim, damage of the type that occurred must be shown to have been “reasonably foreseeable ”. What sort of damage was foreseeable by the Council when the site was remediated?  Was injury in the form of birth defects reasonably foreseeable?

7. Summary

For the young people from Corby with the birth defects, as well as for their families, it must be a huge relief that this marathon dispute has finally come to an end, and that a financial settlement has been reached. The case is also a major achievement for the families’ lawyers. As one commentator observed in relation to last summer’s High Court decision, “Not many such multi-party, toxic tort claims make it to court given the complexity of evidence and the consequent costs of funding the action. To have achieved a verdict in favour of the majority of claimants is a rare and surprising victory”.

However, even if one allows for the fact that environmental disputes are often complex both from a technical / scientific and environmental law standpoint – and the Corby case is one of the most complex on record – for a case to cost so much money (and take 11 years) in order to reach a settlement reflects very badly upon our civil laws and procedures.

Indeed, the issue of onerous costs is not simply one which applies to civil litigation for compensatory damages – it also applies to environmental judicial review against the decisions of public bodies. About half of the cases concerning environmental disputes taken up against public bodies by the Environmental Law Foundation have to be discontinued due to cost constraints.   In a recent report, the “Cost Barriers to Environmental Justice”, it is observed that there is a stark “denial of access to environmental justice, particularly when the challenge is to a public body” and that this is “shabby and mean spirited in a modern democracy ”. Evidently there is much work for policymakers to do to achieve greater access to environmental justice – it needs to be made more affordable and settlements need to be accelerated.

About the author

Stephen Sykes

Stephen is an entrepreneur. He has built businesses in the following sectors: data, insurance, remediation and consulting.  With a background in environmental law, Stephen is the Chair of the UK Environmental Law Association, director of the Castle Debates and a Visiting Fellow at Birkbeck's Centre for Innovation Management Research.