On 29th November, the Court of Appeal gave its judgment in Churchill v Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416 clarifying an important legal question – can a judge lawfully order parties to take part in Alternative Dispute Resolution (ADR) processes? Yes, they can. Common examples of ADR processes include mediation, negotiation, and early neutral evaluation, but the Master of the Rolls in Churchill commented that the court could stay proceedings for any process that might allow the parties to resolve their issue (such as the internal complaints procedure being considered in the case).
Previously, the case of Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576 was seen as authority for the idea that the court requiring parties to pursue, in that case, mediation, against their will would obstruct their right to access the court and thus breach the right to a fair trial. However, the Court of Appeal’s new judgment confirms that the relevant comments in Halsey were not binding on the judge in the lower court in Churchill, and that a court does have discretion to stay proceedings for, or order the parties to engage in, an ADR process.
The Court of Appeal did caveat that this power must be used proportionally to settle disputes “fairly, quickly and at a reasonable cost”, and that it must not impair the “very essence” of a claimant’s right to have their case heard by a judge.
The Churchill judgment also referenced some factors that a court might consider when deciding whether to exercise its discretion to order ADR, including:
- the nature of the suggested ADR process;
- whether both parties are legally represented;
- whether there is a realistic prospect of settlement via ADR; and
- the reasons why a party does not want to participate in ADR, such as where it has already been attempted without a resolution.
Notably, though, the Court of Appeal refused to set a fixed list of determinative factors.
The new ruling is significant in emphasizing the court’s regard for dealing with cases justly and at a proportionate cost. The clarification of the extent of the court’s powers may also serve as encouragement to parties to fully consider their ADR options, or else potentially face being ordered by the courts to involuntarily participate in an ADR process.
Our team of experts are consistently ranked as some of the best in the region and can advise on a range of contentious matters, including your options for ADR.
If you would like further information or advice in relation to Alternative Dispute Resolution processes, please contact Rob Adam, Partner or visit our website for more information.
This is only intended to be a summary and not specific legal advice.
