Court cases

In 1996, Lord Woolf published his report on Access to Justice. This became the foundation of the Access to Justice Act in 1999. One of the key principles of both the report and the Act was that going to court should be a last resort. People are expected to try to resolve the dispute themselves, by clearly stating the problem to the other side, attempting to negotiate, and by considering whether some form of alternative dispute resolution might help.
 
The new Civil Procedure Rules, published in 2000, reinforced the courts' responsibility to actively manage cases. This meant that the judge could postpone a hearing for the parties to try mediation or some other ADR option. Courts were also given the power to impose costs penalties on parties who did not try to resolve the dispute before making a court application: this meant that a winning party could be made to pay the costs of the case if they had unreasonably refused ADR. More details can be found in ADR and the courts.
 
These rules have, of course, been tested and explored through case law. Cases have focused on two key principles:

• Can courts postpone cases indefinitely, or even refuse to hear a case, because one of the parties refuses to try mediation or some form of ADR?
• What is meant by ‘unreasonable’? What reasons for refusing ADR are justified?

The first few significant cases seemed to be taking a rather a firm line on both of these issues. In The Cowl case 2001, Lord Woolf turned down an appeal against the refusal of permission for Judicial Review on the grounds that the complainant had not exhausted internal complaints procedures. In The Dunnet v Railtrack case 2002 and The Hurst v Leeming case 2002 the courts made it clear that the fact that one party believed that they had a watertight argument and would therefore win the case was not in itself a good enough reason for refusing an offer to mediate.
 
However The Halsey Case 2004 established some key principles. On the one hand, the judges made it clear that ADR was an important part of the justice system. They stated that courts have a duty to encourage the parties to use ADR where it is considered appropriate, and that "all members of the legal profession who conduct litigation should now routinely consider with their clients whether disputes are suitable for ADR".
 
But on the other hand two key principles were established:

• Compulsion to use ADR would be regarded as an unacceptable constraint on the right of access to the court and, therefore, a violation of article 6 of the European Convention on Human Rights
• Cost penalties can be imposed by the courts on parties that have unreasonably refused to consider some form of ADR. But since the general rule is that the losing party should pay the winning party's costs, it is up to the losing party to show that the winning party was unreasonable in refusing to mediate, or to consider some other form of ADR

The key cases since the Access to Justice Act 1999 are all summarised in this section of the ADRnow website – click on the relevant case on the right to read some more details. But bear in mind that the Halsey judgement gives the most accurate indication of the current attitude of the courts.
 
August 2009