Litigation Update

On 1 October 2024, new Civil Procedure Rules (CPR) on alternative dispute resolution (ADR) came into effect, following the Court of Appeal's decision in Churchill v Merthyr Tydfil County Borough Council [2023]. In this case, the court ruled that disputing parties could be compelled to engage with ADR, provided orders respect the right to a fair trial, pursue legitimate aims, and are proportionate.

The new CPR rules encourage courts to actively promote ADR, including ordering parties to participate in it. They also allow for costs penalties if a party unreasonably refuses ADR. These changes highlight the growing significance of ADR in civil litigation, positioning it as an integral part of case management from the outset. Courts are expected to engage parties with ADR early on, potentially promoting alternative resolutions throughout the litigation process.

Key changes include:

• The overriding objective of the CPR now includes “ordering or encouraging the parties to use, and facilitating the use of, ADR” (1.4(2)(e)).
• The court’s case management powers explicitly allow ordering parties to engage in ADR (3.1(2)(o)).
• New provisions permit the court to direct ADR in fast-track and intermediate-track cases (28.7(1) and 28.14(1)).
• The court must consider ordering or encouraging ADR in multi-track cases (29.2(1A)).
• Costs assessments will consider any failure to comply with ADR orders or unreasonable refusal to engage in ADR (44.2(5)).

This update is for general purpose and guidance only and does not constitute legal advice. Specific legal advice should be taken before acting on any of the topics covered. No part of this update may be used, reproduced, stored or transmitted in any form, or by any means without the prior permission of Brecher LLP.

Written by Charlotte Kessler