Courts in England and Wales can now order parties to engage in alternative dispute resolution (ADR) following changes to the Civil Procedure Rules (CPR) that came into force at the beginning of October.
Changes to the CPR, effective from 1 October 2024, allow courts to compel parties to engage in non-court dispute resolution (NCDR) in cases where such an order is proportionate and does not undermine the parties’ right to a judicial hearing.
The amendments were prompted by the Court of Appeal’s ruling towards the end of last year in Churchill vs Merthyr Tydfil County Borough Council (2023).
The Churchill case started as a claim of nuisance brought by James Churchill against Merthyr Tydfil County Council. Mr Churchill said that encroachment of Japanese knotweed from the adjacent council-owned property in 2016 had caused damage to his property, resulting in loss of value and enjoyment.
In their response to Mr Churchill’s letter before claim, the Council suggested that Mr Churchill should have made a complaint using their corporate complaints procedure and warned that if a claim were issued, they would apply to the court for a stay to force him to pursue a claim via the Complaints Procedure route.
Mr Churchill issued his claim in July 2021, and the council applied for a stay in February 2022. This prompted the need for the court to consider a far wider-reaching question: whether it has the power to order a stay in proceedings to allow parties to explore NCDR procedures (such as the Complaints Procedure).
The Court of Appeal ruled on 29 November 2023 that the court can order parties to engage in NCDR and/or a stay in proceedings to allow for NCDR to occur.
Read more about the Churchill case in our previous blog by clicking here.
Following the decision, the Civil Procedure Rules Committee considered the practical implications of the Court of Appeal’s judgment and how it should be enshrined in the CPR and civil practice.
A consultation was launched in April 2024, with draft rules published soon after. These were laid before parliament at the end of July, and came into force under the Civil Procedure (Amendment No.3) Rules 2024 (SI 2024 No. 839) at the start of October.
The changes involve a suite of amendments to the CPR to promote the use of alternative dispute resolution.
The key changes to the CPR rules after Churchill are:
- CPR 1(f) now includes promoting ADR as part of “dealing with a case justly and at proportionate cost”.
- CPR 3.1 (2)(o) allows courts to order parties to participate in ADR.
- CPR 28 now includes whether to order or encourage parties to engage in ADR in fast track and intermediate track cases.
- CPR 29 includes whether to order or encourage parties to engage in ADR when giving directions for multi-track cases.
- CPR 44 includes considering whether a party failed to comply with an ADR order when considering costs in a claim.
Although the rules provide little guidance on the exact circumstances in which the court will use its power or the way in which it will do so, the changes to the CPR rules provide further evidence of the courts’ support for the increased use of ADR.
The changes fully embed ADR in the civil justice system and highlight to parties the importance of considering NCDR at the outset of a dispute.
Compulsory Mediation Lawyers London
Muscatt Black Graf’s Dispute Resolution team deals with civil and commercial disputes and provides practical and pragmatic legal advice to ensure any disputes are resolved quickly and cost-effectively.
We understand that taking legal action for any reason can be extremely stressful, particularly when you are unsure about the costs and process involved.
Our experienced team of Dispute Resolution solicitors will explain exactly what is involved at every stage of the process and advise on the best possible course of action depending on your needs.
We offer specialist dispute resolution advice in the following areas:
- Arbitration.
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Muscatt Black Graf’s Dispute Resolution department is headed up by partners Yvonne Addy and Andrew Wheldon.
Yvonne’s practice encompasses a broad-spectrum including company, commercial, property, construction, employment, matrimonial and probate law. She has previously acted for a foreign state in international arbitration and regularly acts in high value litigation for domestic and international trusts, corporations, and high-net-worth individuals.
Andrew acts for individuals and corporate clients on a wide range of contentious matters. His practice has a strong commercial property element, covering the full range of disputes arising from the Landlord and Tenant relationship, including renewals under the 1954 Act, restrictive covenants, and Lands Tribunal matters.
For advice on Dispute Resolution matters, please email Muscatt Black Graf on contact@muscattblackgraf.com. Alternatively, click here to complete our online contact form.
This blog was prepared on 11 December 2024. It is not intended to be advice and should not be relied upon as such.