Page 16 - PIC Magazine Issue 24 - Spring-Summer (Digital)

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Alternative
Dispute Resolution
Professor Dominic Regan, Head of the Knowledge Hub at Frenkel Topping
Nomenclature: the CPR glossary says ADR is a “Collective description of methods of resolving disputes otherwise than through the normal trial process. “The Commercial Court Guide has renamed it as “Negotiated Dispute Resolution. “The Master of the Rolls, an ardent fan, says it is Dispute Resolution and is an integral part of the process rather than an outlying alternative.
Thirty-five years ago, the Law Society published a Report describing Alternative Dispute Resolution
(ADR). My contemporaries were bewildered. How on earth could internecine Litigation be resolved other than by Trial? More specifically, who in their right mind would even agree to participate in what some perceived as a cowardly way out?
How times have changed. Mediation in particular has gained credibility. Why? The Judiciary has decided
that it is preferable for cases to settle rather than proceed to trial. The now retired HH Judge Simon Brown QC confided in me that he felt that something had gone wrong if a case actually got to trial. Part 36 and ADR are discrete mechanisms which share a common purpose and that
is to curtail disputes.
The scarcity of Judges to hear cases and rooms to accommodate them has played a part. What is more remarkable is how some Senior Judges with a lengthy Litigation pedigree changed
direction. Sir Alan Ward, who played a prominent role in the Court of Appeal, describes
himself today as a poacher turned gamekeeper advocating meditation instead of Litigation.
The changing economics of litigation has also influenced attitudes. There was a time not so long ago when funds were plentiful. Structural reforms attributable to the Jackson proposals have had a drastic impact. Now, the incentive to settle quickly (but obviously on the right terms) and get paid is
the driving force. Cash flow is the lifeblood of every business. Funders get twitchy the longer a claim drags on. Solicitors who are perceived as dilatory will struggle to secure future funding. Those who hold the purse strings keep sophisticated records and can identify the laggards.
Early Court of Appeal guidance, now disavowed, in HALSEY V MILTON KEYNES NHS TRUST (2004) 3 Costs LR 393 stated that the court could not order ADR as this would breach Article 6, the right to a fair trial.
This was widely criticized, and the Judiciary began to move away. It was Briggs LJ as was who delivered the influential decision about ADR in PGF V OMFS (2013) EWCA Civ 1288; to merely ignore the suggestion
of ADR could be construed as unreasonable conduct. In this action, the claimant had suggested ADR at an early stage. The defendant never bothered to reply. Shortly before trial, the claimant felt compelled
to accept an offer made long before by the defendant. Ordinarily, belated acceptance of a Part 36 offer by
a claimant out of time would generate a liability to pay costs to the defendant from expiry of the
21 day relevant period. Not here though. In what has been rightly described by Sir Rupert Jackson
as a “ground-breaking decision“, Briggs LJ declared that the failure
to engage was unreasonable.
This enabled the Court to absolve the claimant from liability to pay a penny to the defendant. It would
be unjust to apply the default Part
36 provision.
How times have changed. Mediation in particular has gained credibility.
The Judiciary has decided that it is preferable for cases to settle rather than proceed to trial.
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