Alternative Dispute Resolution After Churchill

Alternative Dispute Resolution After Churchill

Alternative Dispute Resolution ("ADR") has become a genuinely prominent element of civil litigation. Although the right of access to the courts is a fundamental constitutional principle Judiciary UK, civil procedure today acknowledges that judicial determination is not always the best way to achieve justice. The recent Court of Appeal decision in Churchill v Merthyr Tydfil County Borough Council has underlined the role that Alternative Dispute Resolution plays (and must play) within civil justice. ⁹

Prior to Churchill, practitioners had routinely relied upon the comments in Halsey v Milton Keynes General NHS Trust (that compulsory mediation would generally infringe a party's right of access to the court under Article 6 ECHR) as "common ground" Practical Law. ¹⁰

In Churchill, on the other hand, the Court of Appeal stated that there is no hard and fast rule to preclude a court from staying proceedings or ordering parties to use non-court dispute resolution before commencing (or continuing) litigation if such an order Pinsent Mason

• does not impair the essence of the claimant's right to a judicial hearing; and
• remains proportionate to achieving the legitimate objective of resolving disputes fairly, quickly and at reasonable cost.¹¹

Although Churchill does not establish compulsory mediation in every case, it represents an important development in judicial thinking. The decision confirms that courts possess broad case management powers under CPR Part 3 and may actively encourage, or in appropriate circumstances require, parties to participate in ADR where doing so is proportionate.¹²

This development should be viewed alongside earlier authorities emphasising the costs consequences of unreasonable refusals to engage in ADR.

In Dunnett v Railtrack plc, the Court of Appeal declined to award costs to a successful party because it had unreasonably refused mediation.¹³

Similarly, in PGF II SA v OMFS Company 1 Ltd, the Court of Appeal held that a party's complete failure even to respond to an invitation to mediate constituted unreasonable conduct capable of justifying adverse costs consequences.¹⁴

More recently, Thakkar v Patel reaffirmed that where one party frustrates genuine attempts at ADR, the court may properly reflect that conduct when determining costs, irrespective of the substantive outcome of the litigation.¹⁵

Taken together, these authorities demonstrate a consistent judicial message: parties are expected not merely to acknowledge ADR but to engage with it constructively wherever appropriate.

Consequently, practitioners should give consideration to ADR at each stage of the pre-action process. If this approach is not successful, then, depending on the nature of a dispute, mediation, early neutral evaluation, or expert determination or without prejudice negotiations are appropriate. An express written willingness to participate in ADR will, if costs are later contested at trial, be immensely compelling.