Alternative Dispute Resolution Consultation following Churchill v Merthyr Tydfil
Alternative Dispute Resolution Consultation following Churchill v Merthyr Tydfil
On 2 December 2024, I (Robert Foote), posted an article on the case of Churchill v Merthyr Tydfil CBC [2023] EWCA Civ 1416 where the English Court of Appeal held that the Court can order parties to engage in non-court disputes resolution provided that the order (i) does not impair the essence of the claimant’s right to proceed to a judicial hearing; and (ii) is proportionate to the legitimate aim of settling the dispute fairly, quickly and at reasonable cost: see here.
The Churchill decision was the first time the Court considered that it has the power to compel parties to mediate or engage in some other form of alternative dispute resolution (“ADR”). In reaching its decision, the Court found that the contrary view taken in Halsey v Milton Keys General NHS Trust [2004] EWCA Civ 576 that it had no jurisdiction to force parties to mediate, was made obiter and was therefore not binding.
Following Churchill the Civil Procedure Rules Committee launched a consultation on ADR and proposed rules changes on 16 April 2024 (“the Consultation”). The proposed revisions to the CPR include:
- Revising Rule 1.1 of the Civil Procedure Rules (“CPR”) to add that dealing with a case justly and at proportionate cost includes, so far as practicable, using and promoting ADR.
- Revising Rule 1.4 CPR and Rule 3.1 CPR to clarify that the Court may order (as well as encourage) parties to use ADR.
- Revising Parts 28 and 29 CPR to require the Court to consider whether to order or encourage parties to participate in ADR for fast-track, intermediate track and multi-track claims.
- Revising Part 44 CPR 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 Consultation closes on May 2024.
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