Alternative Dispute Resolution Briefing: November 2024

This is the last ADR Bulletin of 2024 and it’s been an incredibly exciting year. There have been wideranging changes to the CPR, bringing the rules in line with the landmark case of Churchill v Merthyr. Bethany Hutchison considers the main provisions, noting that the stage is now set to put ADR “front and centre across the spectrum of civil litigation.”

The Courts have continued to emphasise the importance of engaging in ADR and the costs consequences of unreasonably refusing so to do. Our new tenant, Megan Bithel-Vaughan, provides an overview of the recent caselaw and in particular the Court of Appeal’s decision, earlier this year, in Northamber Plc v Genee World.

As an interesting companion piece to all of this, I would invite readers also to consider the judgment in Invenia Technical Computing Corporation & Ors v Hudson [2024] EWHC 1302. This provides a now rather rare example of a case where the Court did not consider it unreasonable for the Defendant to fail to engage in ADR.

The circumstances are somewhat unusual and indeed rather extreme, as the Claimant was a litigant in person who, the Court found, had “entirely unrealistic views about the merits of his case” and continued, to the end, to make “serious unsubstantiated allegations of wrongdoing” against the Defendant and its lawyers. The mediation offer was put forward only a month before a listed final hearing date; mediation had “no real prospects of success” and “would simply have added another layer of expense for no good purpose.” The fact that it would have put in jeopardy the final hearing date was relevant. The case really turns on its facts although I expect it will be relied upon by entrenched parties to justify non-engagement. The significant takeaway is that it is often a good idea to consider ADR sooner rather than later.

I myself have had a couple of mediations very close to trial this year and, while I don’t necessarily recommend that approach, they were resounding successes. In one of these, a JSM had failed so that the benefits of mediation were plain. I am more of a fan of mediation than ever.

Wishing everyone a peaceful holiday period, although I am well aware we aren’t quite there yet. I look forward to discussing and engaging in much more ADR in 2025.

Laura Elfield, Head of the ADR team

Read the Briefing in full.