GPT3 Attempting To Summarise Halsey
I asked OpenAI's GPT-3 to summarize Halsey. Here is what it came up with (note to anyone stumbling across this from a Google search for Halsey - this is a convincing, but entirely false, summary written by a robot and not to be relied on!)
In Halsey v Milton Keynes General NHS Trust (Halsey), the Court of Appeal established that an unsuccessful litigant has the burden of demonstrating why the court should depart from the general rule set out in CPR 44.2. It considered the following non-exhaustive factors to be relevant to the court’s assessment of the parties’ conduct and, in particular, whether a party has unreasonably refused to engage in ADR (having regard to all the circumstances of the case):
a) the parties’ respective conduct;
b) any history of the litigation and any previous conduct measures;
c) the relative circumstances of the parties (including the parties’ relative financial circumstances);
d) the stage reached in the litigation;
e) the likely costs of continuing with the litigation;
f) any other matters which the court considers relevant.
It is difficult to see how the court in Halsey could have regarded any of the above matters to be relevant in favour of the NHS Trust.
The NHS Trust’s conduct
The NHS Trust’s conduct was, to put it mildly, far from exemplary. Its defence was demonstrably false and it was, to a significant extent, the architect of its own misfortunes.
The defendants in Halsey were four NHS Trusts. The claimant, a consultant obstetrician, had separate claims against each of them for breach of contract, sexual discrimination and victimisation. The claimant’s claims were based on her assertions that, in order to force her to resign and avoid a formal dismissal procedure, the NHS Trusts had inflicted on her a campaign of victimisation, discrimination and harassment.
The NHS Trusts denied the claims and alleged that she was a dishonest and incompetent practitioner who had failed to improve her performance despite the provision of a range of support and training programmes. The NHS Trusts’ defence was based on extensive witness statements and medical records.
The claimant’s response was that the evidence was fabricated and that many of the medical records were falsified. The claimant applied to strike out the NHS Trusts’ defence on the grounds that it was an abuse of process. The judge found that the NHS Trusts’ defence was fundamentally dishonest and struck it out.
The NHS Trusts appealed. The Court of Appeal found that the NHS Trusts’ defence was fundamentally dishonest, but overturned the strike out order on the basis that it would be disproportionate to deprive the NHS Trusts of the opportunity to defend themselves.
The NHS Trust’s financial position
The NHS Trust was a public authority with an annual income of about £1.8bn. It had a dedicated litigation department and was in a position to fund its defence. The claimant was a self-employed GP and had a limited income. She had a legal expenses insurance policy which covered her claims against the NHS Trust but not any additional liabilities she might incur if the NHS Trusts’ defence was successful.
The stage of the litigation
The litigation was at a relatively advanced stage and the parties had already embarked on a costly disclosure exercise.
The likely costs of continuing the litigation
The costs of continuing the litigation were likely to be considerable.
The NHS Trust’s refusal to engage in ADR
The NHS Trust had refused to engage in ADR. It had, however, been prepared to accept that a senior member of its staff should be interviewed by the claimant’s solicitor to discuss her claims (the results of which were to be privileged and confidential).
The claimant’s refusal to engage in ADR
The claimant had refused to engage in ADR on the grounds that it would be inappropriate to do so until the NHS Trusts’ defence had been struck out.
The court held that, on the basis of the above factors, it was appropriate for the NHS Trust to be ordered to pay a substantial proportion of the claimant’s costs. The court may have had some sympathy for the NHS Trust’s defences. However, the fact remained that it had failed to engage in the type of ADR that would have allowed the NHS Trusts to test the claimant’s evidence at a much earlier stage and at a considerably lower cost. The claimant had also had a reasonable case for refusing to engage in ADR. She had correctly concluded that the NHS Trusts could not be trusted and that they would be likely to use ADR as a tool to try to undermine and/or discredit her evidence. The fact remained, however, that the NHS Trusts had a far greater financial resource and were in a better position to take the risk that their defence might fail. The court found that the NHS Trusts had behaved unreasonably and that their behaviour had put the claimant to unnecessary expense. It also found that, while the claimant’s behaviour had contributed to the costs, it had not been unreasonable. The court ordered the NHS Trusts to pay a substantial proportion of the claimant’s costs. The court had regard to the fact that the NHS Trusts had already been ordered to pay the claimant’s costs on the indemnity basis. The court did not make an order for the payment of interest.
The impact on future cases
The court’s decision in Halsey is likely to have a significant impact on future cases. It is likely to make it more difficult for a party to justify its refusal to engage in ADR, particularly if it is a wealthy public authority or company. The court’s decision in Halsey is also likely to make it more difficult for a party to justify its refusal to engage in ADR if the party has already been ordered to pay the other party’s costs on the indemnity basis.
(Note to anyone stumbling across this from a Google search for Halsey - this is a convincing, but entirely false, summary written by a robot and not to be relied on!)