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In a landmark decision the Court of Appeal has concluded that a court has the power, in appropriate circumstances, to order parties to attend a form of ADR.
The central issue before the Court of Appeal (Lady Chief Justice, Master of the Rolls and Lord Justice Birss) was whether a court has the power to stay a claim for, or order, the parties to engage in a non-court-based dispute resolution process (such as a mediation or early neutral evaluation) and, if it does, when that power can and should be exercised.
The Master of Rolls (with whom the Lady Chief Justice and Birss LJ agreed) held that a Court does have the power to stay a claim for, or order, the parties to engage in a non-court-based dispute resolution process providing that the power is exercised in such a way that it does not impair a party’s rights to a fair trial under Article 6 of the ECHR. In practice this means that when considering whether to order the parties to engage in a form of non-court based dispute resolution process a Court will have to consider a wide variety of case-specific and party-specific factors whilst balancing the potential increased costs and/or delay which may result from the process.
By way of guidance, the Court of Appeal noted that if a Court is considering whether to order parties to attend a mediation, it should consider factors such as: (i) the cost of a mediation; (ii) whether the dispute is suitable for mediation; (iii) whether parties are represented; (iv) the urgency of the case; (v) the parties’ resources; (vi) a party’s reasons for not wanting to mediate and (vii) what sanction (if any) to apply to a refusal to mediate (this list is not exhaustive and each case will turn on its individual facts). As put by the Master of Rolls:
“The court should only 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” (¶66).
In concluding as much the Court held that the comments of Dyson LJ in Halsey v. Milton Keynes General NHS Trust [2004] EWCA Civ 576 that an order compelling ADR would amount to violation of the parties’ rights under Article 6 of the ECHR were obiter and no longer represented the law.
Practitioner points
It will take time for the decision to bed into the civil litigation system and practitioners should keep an eye out for further cases which address the interplay between an order for a non-court-based dispute resolution process, the sanction for non-compliance and a party’s Article 6 rights as and when they appear.
In the short-term practitioners need to ensure that they have a considered view as to whether to ask for, accede or resist an order for a non-court-based dispute resolution process (in all likelihood to be a mediation) well in advance of a CCMC (being the natural point for the issue to be first ventilated).
The judgment may be accessed here.
Rupert Cohen acted for The Law Society.
Justin Bates and Tom Morris acted for The Housing Law Practitioners Association.
