Long awaited changes to the Civil Procedure Rules came into force on 1 October 2024, confirming the English and Welsh civil courts’ power to order parties to engage in alternative dispute resolution (ADR) including mediation.
The changes are intended to give effect to the decision last year in Churchill v Merthyr Tydfil Borough Council [2023] EWCA Civ 1416. which was a decision that overturned what had been widely accepted as a general prohibition on the English courts compelling parties to use ADR, based on Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576.
In Churchill, the Court of Appeal held that the courts do have the power to order parties to engage in mediation or some other non-court dispute resolution process, and to stay proceedings to allow that to happen, in circumstances where such an order would not impair the very essence of the parties’ fundamental right to a judicial hearing, and would be proportionate to achieving the aim of settling the dispute fairly, quickly and at reasonable cost.
The rule changes follow a consulatation this year by the Civil Procedure Rule Committee, based on the work of a multijurisdictional working group chaired by Lady Justice Asplin, of which I am a member. The finalised amendments follow the proposals in the consultation, amending:
- CPR 1.1 – to add that the overriding objective of dealing with cases justly and at proportionate cost includes, so far as practicable, “promoting or using [ADR]”
- CPR 1.4(2) and 3.1(2) – to confirm that the courts’ general case management powers which now include not just encouraging but ordering parties to engage in / use ADR where appropriate
- Parts 28 (fast/intermediate tracks) and 29 (multitrack) – to confirm that the matters the court should consider when making case management directions include “whether to order or encourage the parties to engage in [ADR]”
- Part 44 – to add that, when the court is exercising its general costs discretion. its consideration of the parties’ conduct may include “..whether a party failed to comply with an order for [ADR], or unreasonably failed to engage in [ADR] “.
The changes re state the existing powers of the Courts to order ADR. What remains to be seen therefore is how the Courts approach their new found powers. Will we see more parties having to engage in ADR and mediation?
The Court of Appeal in the Churchill case did not lay down fixed principles as to when such an order should be made. The court noted held that it would be undesirable to provide a checklist or a score sheet for judges to operate.”
Once again it is likely to be hit and miss as to whether the Courts order the parties to undertake mediation or ADR. Culturally, there seems to be a resistance to compelling parties to try to settle cases. Most parties in commercial cases and solicitors already consider ADR and advise their clients to try it. It may be that judges will reserve their powers for the most intransigent of parties and those involving boundary disputes, TOLATAs or Will disputes which always seem to be disproportionately expensive and often involve litigants in person.
it seems unlikely that we will see a great increase in ADR or mediation because of this rule change. For that to happen it would really need to be integrated into the system as a compulsory step.
To arrange a mediation with a CIvil Mediation Council accredited mediator please get in touch.