Alternative Dispute Resolution Update
The CPR has seen various amendments in relation to alternative dispute resolution.

Following the judgment in Churchill v Merthyr Tydfil County Borough Council, the CPR has seen various amendments in relation to alternative dispute resolution (“ADR”). The court is now able to order parties to engage in non-court dispute resolution and to stay proceedings pending that engagement.
The relevant amendments to the CPR are:
- The court may now order the parties to use ADR, as opposed to only encouraging and facilitating the use of it [CPR 1.4(2)(e) and CPR 3.1(o)]
- When giving case management directions the court must specifically consider whether to order or encourage ADR in any Fast track cases [CPR 28.7(1)(d)], Intermediate track cases [CPR 28.14(1)(f)] or Multi-track cases [CPR 29.2(1A)].
- Indeed, at any stage of the proceedings in the Multi-track the court has the discretionary power to order or direct the parties to consider ADR [CPR PD 29.10(9)]
- Finally, when making any order as to costs the court may now to take account of any failure by a party to comply with an order for ADR, or unreasonably failing to engage in ADR voluntarily [CPR 44.2(5)(e)].
The consequence of these reforms is that the power of the court to order ADR as per Churchill is now deeply embedded in the CPR, in the overriding objective, and the specific case management directions for every track and any failure to do so may have serious cost consequence.
Indeed, the recent case of Northamber PLC v Genee World Ltd & Others (Rev1) [2024] EWCA Civ 428 illustrate the potential effect of such a failure. In that case, the Claimant had partial success at trial and recovered 70% of their costs but on appeal the claimant was awarded an extra 5% of their costs up to 75% as a result of the defendant’s unreasonable failure to engage in mediation or explain their conduct. This was a modest but not insignificant costs sanction which further reiterates the seriousness with which the courts are likely to approach ADR going forwards.
The wording of the amendments to the CPR imply a broad discretion for ordering ADR that the court may consider on a case by case basis. Although the court is not obliged to order ADR, in reality it is likely to form part of most court’s standard directions going forwards and will represent another stepping stone the parties will have to traverse on route to the determination of their claim. Parties would be well advised to always consider ADR whenever possible and, if not, be prepared to justify your stance with cogent reasons.
Byron Austin
December 2024
Atlantic Chambers