Earlier this year, we examined the Court of Appeal's decision in Churchill v Merthyr Tydfil County Borough Council and discussed how this case highlighted the court's ability to compel parties in court proceedings to engage in Alternative Dispute Resolution (ADR) such as mediation.
By way of reminder, it was decided that the court could lawfully stay proceedings to order the parties to engage in non-court-based dispute resolution processes. However, this can only happen so long as the order does not impair the claimant's right to proceed to a judicial hearing and is proportionate to achieving the legitimate aims of settling the dispute fairly, quickly and at a reasonable cost.
Following this judgement, the Civil Procedure Rule Committee has recently announced a consultation on ADR, as well as proposed changes to the Civil Procedure Rules. In summary, the proposed revisions are:
A revision to CPR 1.1 (the overriding objective) that adds that dealing with a case justly and at proportionate cost includes, so far as is practicable, using and promoting ADR.
A proposal that CPR 1.4 (the court’s duty to manage cases) and CPR 3.1 (the court’s general powers of management) are revised to clarify that the court may order (as well as encourage) parties to use ADR.
Changes to CPR 28 (the Fast Track and the Intermediate Track) and 29 (the Multi-track) would require the court to consider whether to order or encourage parties to participate in ADR for fast-track, intermediate track and multi-track claims.
CPR 44 (general rules about costs) would be revised to add that, when considering the conduct of the parties in the context of deciding what order (if any) to make about costs, the court will have regard to whether a party failed to comply with an order for ADR or unreasonably failed to participate in ADR proposed by another party.
The overriding objective of the Civil Procedure Rules is to enable the court to deal with cases justly and at proportionate cost. It is well established that ADR can be an effective way to resolve disputes, as it is efficient, cost-effective, and capable of producing settlements in a format unavailable to the court process. You can find out more about the benefits of ADR here.
The Committee has invited responses to the consultation, which should be submitted to CPRconsultation@justice.gov.uk (subject heading: ADR Consultation) by 28 May 2024.
Key takeaways
If the changes are implemented into the CPR rules, this will provide a statutory footing, allowing the court in England and Wales to order parties to engage in non-court-based dispute resolution. Strengthening the position on where ADR sits within the court’s judicial powers.
Parties to any dispute should be mindful of the need to prepare for any ADR process and seek advice where necessary.
If you or your business would like to find out more, please contact Iain Drummond or a member of our Construction and Infrastructure Disputes team, who can offer specialist knowledge and alternative methods of dispute resolution.
This article was authored by Trainee Solicitor Nikki Forde