The MOJ is consulting on changing the civil procedure rules to make it a requirement of the rules to encourage ADR and to give judges the express power to stay cases for ADR and order parties to use alternative dispute resolution. The idea is to reflect the decision in Churchill v Merthyr Tydfil in the Court rules.
This will effectively allow judges to stay cases and order parties to take part in ADR.
https://www.gov.uk/government/organisations/civil-procedure-rules-committeehttps://www.gov.uk/government/organisations/civil-procedure-rules-committee/about#alternative-dispute-resolution-consultation/about#alternative-dispute-resolution-consultation
As is explained in the consultation document:
This consultation was commissioned at the CPRC meeting of 12 April 2024 (the minutes of which will be made available be online here) following careful consideration by a multi-jurisdictional working group, chaired by a Lady Justice of Appeal. The work flows from the
Court of Appeal judgment in James Churchill v Merthyr Tydfil Borough Council, in which it was decided that the court could ‘lawfully stay proceedings for, or order, the parties to engage in a non-court-based dispute resolution process provided that the order made does
not impair the very essence of the claimant’s right to proceed to a judicial hearing, and is proportionate to achieving the legitimate aim of settling the dispute fairly, quickly and at reasonable cost.’ (Paragraph 74, ii).
This consultation:
We now invite views and comments on the attached proposals. By way of summary:
- Changes to 1.1 would add that dealing with a case justly and at proportionate cost includes, so far as practicable, using and promoting ADR methods. Reference to ADR within the overriding objective would underline that considering the use of ADR should be a key part of the court process.
- Changes to 1.4 and 3.1 would clarify the position established in Churchill v Merthyr Tydfil that judges may order as well as encourage parties to participate in ADR procedure.
- Changes to Parts 28 and 29 would add that courts must consider whether to order or encourage parties to participate in ADR for fast-track, intermediate track and multi-track claims.
- Changes to Part 44 would add that failure to comply with an order for ADR or unreasonable failure to participate in ADR proposed by another party would come under the consideration of the conduct of parties when deciding to make any order about costs.
The proposed wording would be as follows:
PART 1
The overriding objective
1.1.
—(1) These Rules are a procedural code with the overriding objective of enabling the court to deal with cases justly and at proportionate cost.
(2) Dealing with a case justly and at proportionate cost includes, so far as is practicable –
(a) ensuring that the parties are on an equal footing and can participate fully in proceedings, and that parties and witnesses can give their best evidence;
(b) saving expense;
(c) dealing with the case in ways which are proportionate –
(i) to the amount of money involved;
(ii) to the importance of the case;
(iii) to the complexity of the issues; and
(iv) to the financial position of each party;
(d) ensuring that it is dealt with expeditiously and fairly;
(e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases; and
(f) using and promoting alternative dispute resolution; and
(g) enforcing compliance with rules, practice directions and orders.
…………..
Court’s duty to manage cases
1.4.
—(1) The court must further the overriding objective by actively managing cases.
(2) Active case management includes –
(a) encouraging the parties to co-operate with each other in the conduct of the proceedings;
(b) identifying the issues at an early stage;
(c) deciding promptly which issues need full investigation and trial and accordingly disposing summarily of the others;
(d) deciding the order in which issues are to be resolved;
(e) encouraging or ordering the parties to use an alternative dispute
resolution(GL) procedure if the court considers that appropriate and facilitating the use of such procedure;
(f) helping the parties to settle the whole or part of the case;
(g) fixing timetables or otherwise controlling the progress of the case;
(h) considering whether the likely benefits of taking a particular step justify the cost of taking it;
(i) dealing with as many aspects of the case as it can on the same occasion;
(j) dealing with the case without the parties needing to attend at court;
(k) making use of technology; and
(l) giving directions to ensure that the trial of a case proceeds quickly and efficiently.
If these amendments to the rules are made then the Courts will have express powers to order mediation in civil cases.