Court rules

2.Main Content

This information applies to England and Wales only.

The Civil Procedure Rules set out the way in which a case should be handled when it is going through the civil courts. In 1998, following the Woolf report, the Civil Procedure Rules were changed to encourage people using courts to consider trying ADR to resolve their dispute before making an application to court. They also gave courts powers to impose cost penalties on parties who refused to do this.

Active case management
The Civil Procedure Rules require courts to “actively manage” cases, rather than simply hear cases which come before them. “Active case management” means that courts need to look at what the parties do before coming to court, as well as during the court process, and can take this into account when deciding about costs.

S1.4 (2.e) Active case management includes “. . . encouraging the parties to use an alternative dispute resolution procedure if the court considers that appropriate, and facilitating the use of such procedure.”

Cost penalties
The courts also have the power to impose cost penalties on parties for a number of reasons, including failing to follow the pre-action protocols, and failing to consider or try ADR. This has meant that in a number of recent cases, the winning party has not been able to claim their legal costs from the losing side because, although they won the legal battle, they refused to agree to mediation proposed by the other side.

Section 44.5 (3(a) (ii)) states that factors to be taken into account when deciding costs include “. . . the efforts made, if any, before and during the proceedings in order to try to resolve the dispute.”

What is happening in the courts
In The Halsey Case 2004 in May 2004 the court set out guidelines for considering Alternative Dispute Resolution. The current approach is:

courts cannot compel parties to use mediation or other forms of ADR
courts can impose cost penalties on parties who unreasonably refuse to try mediation or other forms of ADR, but it is the responsibility of the losing party to show that the winning party was unreasonable in refusing it

Details of The Halsey Case 2004 and other cases can be found under Court cases in this section of the website.

Full details of the Civil Procedure Rules can be found on the Department of Constitutional Affairs website.
Department for Constitutional Affairs