CEDR, Ciarb and CMC Issue Joint Response to CPRC Consultation

Following their successful intervention in the Churchill case, Ciarb, CMC and CEDR have united again to submit a joint response to the recent consultation issued by the Civil Procedure Rules Committee.

The Civil Procedure Rules Committee (CPRC) of England and Wales put forward amendments which bring the Rules into line with the judgment in the Churchill v Merthyr Tydfil Borough Council (Churchill) case.

The Churchill judgment stated that the court could ‘lawfully stay proceedings for, or order, the parties to engage in a non-court-based dispute resolution process provided that the order made does not impair the very essence of the claimant’s right to proceed to a judicial hearing, and is proportionate to achieving the legitimate aim of settling the dispute fairly, quickly and at reasonable cost.’ (Paragraph 74, ii). 

The changes relate to 1.1, 1.4, 3.1, and Parts 28, 29 and 44. Broadly, these cover: 

• The responsibility of parties and their legal advisors to use mediation and alternative dispute resolution (ADR) processes in line with the overriding objective of enabling the courts to deal with cases justly and at proportionate cost.
• The power and responsibility of the judiciary to direct parties and to manage cases through encouraging and/or ordering the use mediation and other forms of ADR.
• The requirement for courts to consider whether to order or encourage parties to participate in ADR for fast, intermediate and multi-track claims.
• The court’s discretion as to costs, and the consideration of the conduct of the parties in relation to mediation and ADR usage in these orders. 

In summary, Ciarb, CMC and CEDR welcome the proposed changes which would, upon implementation, give the courts and court users the confidence that ADR can and should be used alongside the court-based system. If implemented, the changes mean that: 

1. Judges across England and Wales recognise their inherent and legitimate powers and responsibilities to order parties to engage in ADR.
2. Parties and representatives will be required to engage proactively with ADR processes.
3. Parties and representatives who fail to participate in ADR can expect to receive adverse costs orders. 

This welcome development leads naturally to a broader debate on whether alternative dispute resolution (ADR) should still be called ‘alternative’. The well-known phrase is commonly used and understood but, inherently, diminishes the value of private dispute resolution which, when deployed at the right time, brings multiple benefits to participants. 

Kelly Stricklin-Coutinho, Chair of the CMC says, “The proposed amendments place dispute resolution at the heart of the CPR. This is an important moment for dispute resolution. The changes will focus minds on the use mediation and other forms of dispute resolution, and the depth and breadth of options available to the Judiciary and parties.” 

Catherine Dixon MCIArb, CEO of Ciarb says, “These amendments ensure the landmark Churchill case, in which Ciarb jointly intervened with the CMC and CEDR, is reflected in the Civil Procedure Rules. The proposed rule changes take us closer to ensuring alternative dispute resolution is integrated into the civil justice system in England and Wales.”

James South, Chief Executive of CEDR says, “This proposed change to the court rules, which we very much look forward to being implemented, puts mediation and other forms of dispute resolution centre stage, as judges will be able to use common sense when directing parties to try non-litigation methods to resolve their disputes efficiently and cost-effectively.”

Read the response in full here.