ADR & THE ENGLISH COURTS
The overriding objective
CPR 1.1.1 – objective is to deal with cases justly including saving expenses and acting
proportionately.
Active case management – courts must actively manage cases including encouraging parties to use
ADR if appropriate and court considers it should be used.
Litigation costs
Costs following the event – the reasonable costs of the successful party are paid by the unsuccessful
party. Judges have discretion about dealing with costs and a factor influencing this is how reasonable
the parties were in using ADR.
Pre-action protocols
Written rules which litigants must follow before proceedings are issued and litigation formally starts.
Set out how courts expect parties to behave and are designed to help disputing parties resolve disputes
without having to start proceedings.
Parties explain their cases and give each other time to respond, exchange relevant documents and
available evidence. They are fundamental to the objective of litigation as a last resort. The protocols
include an obligation to consider ADR.
Susan Dunnet V Railtrack PLC [2002] – horses killed on railway track because gate separating field
from tracks was left open. Railtrack company won case. Claimant had repeatedly asked company to
go to ADR but company refused. Held – claimant did not have to pay their costs because of this
refusal.
Hurst v Leeming [2002] – claimant sued barrister but stopped case. Barrister asked for costs and
claimant argued he didn’t have to pay because his offer of mediation was refused. Held – need for
ADR imposes obligation on parties to behave reasonably. The claimant’s character being bad was
good enough reason to refuse mediation. Critical factor – whether objectively viewed, a mediation
had any real prospect of success.
Leicester Circuits ltd v Coates Brothers ltd [2003] – a party agreed to mediate then changed its mind
because in their opinion there was no reasonable prospect of success. Held – not accepted as a good
reason because once you’ve agreed to mediate, it’s unreasonable to stop agreeing to mediate.
Halsey v Milton Keynes General NHS Trust [2004] – Halsey sued hospital for negligence and lost.
Claimant asked hospital to pay for her costs because they refused to mediate, and court refused. CofA
– claimant had failed to prove that the hospital unreasonably refused to mediate. Claimant had to
prove (i) the hospital was being unreasonable, (ii) the mediation had a reasonable prospect of success.
Criticism of Halsey – claimant cannot prove that the other side behaved unreasonable because the
burden of proof is sitting on a party that doesn’t have to prove anything.
CofA in Halsey gave guidelines on mediation:
-court cannot compel a party to mediate because it would infringe on the party’s article 6 ECHR right.
It can only encourage.
-court can impose a costs sanction only when the successful refusing party had refused unreasonably.
