Alternative dispute resolution consultation into the Civil Procedure Rules

Following from the recent Court of Appeal decision of Churchill v Merthyr Tydfil, the detail of which can be found in my previous article, the Civil Procedure Rule Committee (the CPRC) recently commissioned a consultation in relation to proposed amendments to the Civil Procedure Rules (CPR).

By way of summary, in Churchill v Merthyr Tydfil, the Court of Appeal ruled that the court has the power to stay proceedings for, or to order, the parties to engage in a non-court based dispute resolution process. In light of this decision, the CPRC has proposed the following amendments to the CPR:

1. An amendment to CPR 1.1 (the overriding objective) to make specific reference to the court and the parties using and promoting alternative dispute resolution (ADR) when dealing with a case justly and at a proportionate cost
2. An amendment to CPR 1.4 (court’s duty to manage cases) to clarify that the court can order and not merely just encourage parties to use an ADR procedure as part of its active case management duties
3. An amendment to CPR 3.1 (the court’s general powers of management) to confirm that the court has the power to order parties to participate in ADR
4. Two amendments to CPR 28 (directions, or the steps that apply to case progression) and an amendment to CPR 29.2 (case management) to confirm that consideration of whether to order or encourage parties to participate in ADR should be a matter which is dealt with by directions in the fast, intermediate and multi-track
5. An amendment to CPR 44 (court’s discretion as to costs) to allow the court to consider whether a party has failed to comply with an order for ADR, or unreasonably failed to participate in ADR proposed by another, when considering what order to make about costs.

The CPRC consultation closed on 28 May 2024 and the CPRC will now consider these amendments further.

The proposed amendments show a clear change in the landscape following the decision in Churchill v Merthyr Tydfil and clarify the powers the courts have been afforded, and should be engrained in the CPR, to ensure that ADR is given even greater prominence in case management.