The Court's Powers | Alternative Dispute Resolution
Seeking redress through civil court proceedings can be a demanding and arduous process, requiring an understanding of the law, sufficient resources, patience, and perseverance. Alternative Dispute Resolution (ADR) refers to methods of resolving conflicts and disputes outside of the courtroom.
The Civil Procedure Rules (CPR) were introduced with the intention of making civil justice more time and cost efficient. The rules imposed provide practitioners and the Court with the steps that should be taken in civil proceedings, which further the ‘overriding objective.’
The CPR imposes the ‘overriding objective’ on all cases that proceed to litigation under which parties are dutybound to assist the court deal with cases in a just and proportionate manner.
- The overriding objective includes, amongst other things:
- proceeding in a manner that is cost effective,
- dealing with cases in a proportionate manner,
- dealing with each case efficiently and fairly.
To further the overriding objective, the Court can exercise its Case Management Powers, which include ‘encouraging the parties to use an ‘alternative dispute resolution procedure’ (ADR).
ADR is a procedure available when seeking the resolution of a civil dispute in a manner which avoids the involvement of a civil court.
ADR can take various forms, two of which are:
- mediation – involving an independent third party seeking to reach a mutually acceptable outcome.
- arbitration – involving an independent third party who will consider the facts and reaches a decision which may be binding on both parties.
Stuart Southall of KANGS outlines two Cases supporting ADR.
Case Law Supporting ADR
Halsey v Milton Keynes General NHS Trust and Steel v Joy [2004] provides that parties will be expected to engage in ADR or have a reasonable answer for refusing to do so, failing which, cost sanctions may be imposed on the refusing party.
However, it was ruled that the Court cannot order parties who are truly unwilling, to engage with each other as this could amount to an obstruction of the party’s right of access to the Courts.
In Churchill v Merthyr Tydfill Council [2023], the Court stated that not only can it impose cost sanctions on any party who unreasonably refuses to engage in ADR, it can Order the parties to engage in ADR and stay the proceedings provided that:
- the Order does not impair the Claimant’s right to proceed to a Judicial Hearing
- it is proportionate to achieving the aim of settling the dispute fairly, quickly and at a reasonable cost.
What constitutes an unreasonable refusal is at the discretion of the Court.
Failure to Engage in ADR
If, during a Stay of Proceedings, or following a Court Order to engage in ADR, a party still refuses engage, it is likely that the Court will impose upon that party cost sanctions or, in more extreme cases of unreasonableness Strike Out their Claim or Defence.
A Court usually requires a party who refuses to engage in ADR to provide a Witness Statement stating the reasons for failing to comply. The Court may base it’s decision on the witness statement, alongside each party’s conduct when deciding whether to impose any cost sanctions.
Who Should I Contact for Help?
Should you be involved in any contractual dispute or any situation which may require formal civil proceedings to enforce your rights, it is essential that you seek specialised advice and guidance.
The Team at KANGS will be happy to advise you upon the various procedural options available and to guide you through the process. Our Team will support you throughout the entirety of any Civil Dispute and Litigation, seeking to achieve the most satisfactory outcome available as quickly and economically as possible.
If you need legal advice or assistance, we are here to help, please do not hesitate to reach out using the details below:
Tel: 0333 370 4333
Email: info@kangssolicitors.co.uk
We provide an initial no obligation consultation from our offices in London, Birmingham, and Manchester. Alternatively, we provide initial consultations by telephone or video.
