Compulsory Alternative Dispute Resolution – What does this mean for the future of litigation?

In October 2024, a number of changes are being made to the Civil Procedure Rules which will put non-Court based Alternative Dispute Resolution (“ADR”) at the forefront of litigation.  Whilst historically, parties were required simply to confirm in the Directions Questionnaire that they understood the need to try and settle a claim and to explain to the court why they considered it inappropriate to try and settle at that stage, matters took a dramatic turn at the end of last year following the Court of Appeal’s decision in the case of Churchill v Merthyr Tydfil County Borough Council.

In the Churchill case, concerning a claim against a Local Authority for the presence of Japanese knotweed on the Claimant’s property, the Court of Appeal found that it was lawful to stay the legal proceedings (temporarily halt the case) to allow ADR to take place or order the parties to engage in a non-court-based dispute resolution process. 

From October 2024 the parties to litigation will be required to actively consider Alternative Dispute Resolution before taking a case to Court, and it will be the overriding objective of the Court to promote ADR to enable the judicial system to deal with cases justly and at proportionate cost. The Civil Procedure Rules will also enable the Court to order parties to engage in ADR, and at the conclusion of the case when determining payment of costs the Court will have the discretion to consider whether a party failed to comply with an order for ADR or unreasonably failed to engage in the process.  

So, what does this all mean for parties engaged in litigation?  Certainly, engaging in ADR will now be a consideration throughout the legal process by the Courts, legal representatives and the parties. Further, if a party considers ADR inappropriate for any reason (such as the cost involved, the urgency of the matter and whether the case facts make it unsuitable for the process) then the party will need to be able to justify this to prevent adverse costs orders being imposed. Inevitably, ADR will become more commonplace, and it is hoped that as lawyers become more accustomed to the process and appreciate its benefits that this will have a positive effect on case outcomes.

ADR, it seems, is here to stay, but it remains to be seen whether compulsory engagement in a non-court based process will reduce waiting times for court hearings and trials, which have increased since the pandemic, and assist in reaching the ultimate goal of providing parties to litigation with fast, economic and fair access to justice.

Deborah Lewis is Head of Personal injury & Litigation at Barker Son & Isherwood LLP and is able to offer advice on the impact of the Alternative Dispute Resolution requirements, as well as all types of personal injury claims at our offices at 32 High Street, Andover. To discuss further with one of our Team, please email info@bsandi.co.uk or call 01264 353411.