If we become involved in a commercial dispute, morally, most of us want our day in court. Whether we are the claimant or defendant, we want to explain our position, to put our opponent on the spot, and to have justice done.
However, we must factor in the time, risk, stress and cost of taking a dispute into our clogged court system. The parties could choose to find alternative ways to solve the dispute, but this has always been voluntary. However, a recent case about invasive Japanese knotweed has changed that. If disputing parties do not try to resolve a matter outside of court proceedings, they may be ordered by a judge to do so. This is part of the Judiciary’s efforts to make justice more accessible to everyone, and the new UK Government is already showing signs of endorsing this idea.
What is Alternative Dispute Resolution?
Alternative dispute resolution (ADR) refers to methods of resolving disputes other than through a normal trial process. These include private adjudication and arbitration, and non-adjudicative methods such as mediation, executive tribunal, and negotiation. Historically an essential part of ADR is that it is voluntary; something parties to a dispute choose. This flexibility means that these methods of resolving a dispute are often faster, less formal, and less expensive than going to court.
How did a case about Japanese knotweed change the role of ADR in litigation?
When Japanese knotweed encroached onto his property, Mr Churchill commenced a nuisance case against the local council who owned the neighbouring land[1]. The Council asked the court to stop the trial because Mr Churchill had not first used its complaints procedure. Although unreasonably refusing to take part in ADR could mean having to pay more costs in litigation, at this point ADR was still considered a voluntary mechanism which a court could not mandate without obstructing the overriding right to access justice.
But, on appeal the Court agreed with the Council. It could order litigating parties to engage in a non-court-based method of adjudication if this was proportionate to achieving the aim of settling the dispute fairly, quickly, at reasonable cost, and if it did not stop Mr Churchill returning to court if the process was unsuccessful.
Subsequently, relevant parts of the law that previous only allowed courts to encourage ADR have been formally amended, and from October 2024 judges will be able to stop court proceedings and compel parties to engage in ADR.
What about my right to have my day in court?
Being able to take a matter to court is a fundamental right, but all too often doing this is too slow or too expensive to be commercially viable. Justice is available to us, but not always accessible. ADR usually allows for a quick and cost-effective resolution. By courts mandating the use of ADR where appropriate real justice should be accessible to more people.
Using most types of ADR does not prohibit going to court if the process is not successful. The exception to this is arbitration where parties, often in commercial, construction or international trading disputes, agree that an arbitrator will make a binding decision on the matter. But even in arbitration there are certain grounds on which an arbitration award may be appealed to court.
Giving courts the power to mandate ADR aims to reduce the burden on the system and encourage more efficient and amicable resolutions to dispute. Litigation should be a last resort rather than the only way we believe that justice will be done.
If ADR is used in disputes where it is suitable, court backlogs will be reduced and cases that truly need judicial intervention will be dealt with more efficiently. This change in the law should make efficient, cost-effective justice accessible to everyone rather than continuing with an overloaded, expensive system that is only accessible to a few.
Will the new Government promote ADR?
Although the new UK Government’s position on ADR is not yet clear, post the election the Ministry of Justice stated that delivering swift access to justice - in civil as well as criminal cases - is one of their priorities[2]. It is anticipated that this will include encouraging and promoting ADR, particularly in response to the ongoing challenges in the legal system.
Evidence of this may be the fact that the Arbitration Bill was mentioned in the King’s Speech in July 2024 as one first pieces of legislation that the new government is prioritising. This will update the existing law to ensure that the UK continues to be an attractive jurisdiction for both domestic and international arbitration and maintaining the UK’s status as a global hub for dispute resolution.
How do we help you to resolve disputes?
There is growing emphasis in our legal system on resolving disputes before they reach the courtroom. Although we have significant experience in taking matters to trial, early resolution of disputes is a large part of our practice.
We will consult with you to find the most commercially acceptable solution to a dispute to get you the best results when it matters most. We will advise on the relevant law and the risk, costs and benefits of pursing a dispute along different paths, and rigorously pursue the best routes to achieving a satisfactory solution of the dispute. Please get in touch if we can assist you.
[1] Churchill v Merthyr Tydfil CBC [EWCA] EWCA Civ 1416
[2] https://data.justice.gov.uk/justice-in-numbers/jin-access-to-justice
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The information published across our Knowledge Base is correct at the time of going to press.
