Consultation launched in the light of Court of Appeal ruling

On 16 April 2024, the Civil Procedure Rule Committee (CPRC) launched a consultation on potential changes to the rules which govern civil justice following the decision in James Churchill v Merthyr Tydfil County Borough Council [2023], Court of Appeal.

James Churchill v Merthyr Tydfil County Borough Council explained

This case was brought by the claimant against his Welsh local authority after discovering Japanese Knotweed in his garden. The council argued that the claimant should have explored non-court dispute resolution options before taking legal action.

The Court of Appeal was asked to consider whether the existing precedent established in the case of Halsey v Milton Keynes General NHS Trust [2004], (which was authority for the proposition that parties could not be forced to engage in mediation), still reflected the current law.

The Law Society intervened in the case, believing it could provide context both about the solicitors’ profession and the implications for the rule of law/access to justice.

The Court of Appeal determined that a court does have the power to halt a claim/compel the parties to go through the non-court dispute resolution option, provided this would not breach a parties’ right to a free trial under Article 6 of the European Convention on Human Rights. Further, in reaching any decision to order alternative dispute resolution, the court should consider;

• the cost of mediation and the financial position of both parties
• the urgency of the matter
• whether the case was suitable for mediation
• if both parties are legally represented.

The judgment indicated that courts may impose more costs orders where parties refuse to engage.

The consultation

The CPRC seeks views from practitioners on a number of issues to include:

• the variety of ADR methods which could be deployed
• how judges will order ADR for fast, intermediate and multi-track cases
• the extent to which parties who fail to comply with orders for ADR will result in adverse costs consequences.

The consultation closes on 28 May 2024.

Commentary

Both the Court of Appeal ruling and this consultation are indicative of the clear direction of travel in the civil justice space towards the greater utilization of non-court based solutions.

The CPRC, with the approval of the Lord Chancellor, have already announced a pilot scheme which will see the automatic referral of all small claims track (SCT) cases to mediation in certain designated county courts in England and Wales. This will apply to all claims issued on or after the 22 May 2024, though RTA/personal injury claims are currently exempt from the pilot. There is provision for the possibility for costs sanctions being imposed for those who unreasonably engage with the mediation process.

This SCT pilot will run until 21 May 2026 and we expect that the results will largely shape the CPRC’s future approach to alternative dispute resolution in fast track, intermediate and multi-track claims.