The Court of Appeal has given judgment this week in landmark appeal Churchill v Merthyr Tydfil County Borough Council.
The Lady Chief Justice, Master of the Rolls and Birss LJ held, accepting the submissions of the Bar Council as intervener, that the Court can lawfully order parties to court proceedings to engage in mediation and other forms of alternative dispute resolution, provided that such order does not impair the very essence of the parties’ right to proceed to a judicial hearing, and that it is proportionate to achieving the legitimate aim of settling the dispute fairly, quickly and at reasonable cost. The Court of Appeal indicated that whether such an order is appropriate in any particular case will depend on a range of considerations, including (i) the form of ADR being considered, (ii) whether the parties are legally advised or represented, (iii) whether ADR is likely to be effective or appropriate without such advice or representation, (iv) whether it is made clear to the parties that, if they do not settle, they are free to pursue their claim or defence, (v) the urgency of the case and the reasonableness of the delay caused by ADR, (vi) whether that delay would vitiate the claim or give rise to or exacerbate any limitation issue, (vii) the costs of ADR, both in absolute terms, and relative to the parties’ resources and the value of the claim, (viii) whether there is any realistic prospect of the claim being resolved through ADR, (ix) whether there is a significant imbalance in the parties’ levels of resource, bargaining power, or sophistication, (x) the reasons given by a party for not wishing to mediate, and (xi) the reasonableness and proportionality of any sanction for default.
Amy Rogers acted for the Bar Council, led by Chairman of the Bar Nick Vineall KC.
The judgment of the Court is available here.