Alternative dispute resolution implications

Date published

24/04/2023

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This article was originally published in the April 2023 edition of stronger, the ALARM journal.

Halsey v Milton Keynes General NHS Trust [2004] (Halsey), along with the Civil Justice Council’s report on compulsory alternative dispute resolution (ADR) endorsed by Sir Vos, were both analysed by the court when deciding whether to grant permission to appeal in the case of Churchill v Merthyr Tydfil County Borough Council [2022] (Churchill).

Sir Geoffrey Vos, Master of the Rolls, previously made clear the direction of travel regarding ADR, stating that: “ADR should no longer be viewed as ‘alternative’ but as an integral part of the dispute resolution process; that process should focus on resolution rather than dispute.”[1]

Against this background, in June 2023, the Court of Appeal is set to consider an important issue relating to access to justice and ADR in the case of Churchill. In June this year the court will decide whether a claimant who unreasonably refuses to engage in ADR can be prevented from bringing or advancing a claim in court.

The forthcoming appeal in the case of Churchill raises interesting issues in respect of access to justice, the steps to be taken before court proceedings are issued (for example, exhausting internal complaints procedures and adhering to the relevant pre-action protocol), as well as the role of ADR in the civil justice system generally, which could impact public service organisations involved in civil litigation.

The CJC, Local Government Association, the Law Society and the Bar Council were suggested as integrated organisations who may wish to intervene and make submissions which highlights the importance and impact the Court of Appeal’s decision will have, especially in terms of those who fail to comply with pre-action protocols and requests for ADR.

While it remains to be seen whether the Court of Appeal will agree with the conclusions reached in the CJC’s report, this is a case to watch closely.

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References

[1] Mandatory (alternative) dispute resolution is lawful and should be encouraged, Courts and Tribunals Judiciary