This post has been contributed by Mr Robert Jago, Module Convenor for Civil and criminal procedure.
Just before he retired on 5th March 2018 Lord Justice Jackson reflected on his career in a speech to the University of Cambridge Law Faculty entitled ‘Was it all worth it?’ (page 5) One key issue considered in that lecture was the promotion of alternative dispute resolution (ADR). Lord Justice Jackson argues that ADR is an ‘effective method of resolving many civil disputes at modest cost and to the satisfaction of both parties.’ It is interesting to note that in this farewell address Lord Justice Jackson did not elaborate as to the type of ADR being promoted, preferring to underline his general enthusiasm for the Jackson ADR Handbook[1] and the interim report of the Civil Justice Council’s ADR working group for the use of ADR in civil disputes.
The Woolf Reforms and the subsequent Civil Procedure Rules, as amended, have always promoted a range of ADR methods and within that context Lord Justice Jackson notes that in PGF II SA v OMFS Co 1 Ltd[2] the Court of Appeal endorsed the use of the Jackson ADR Handbook. It was also made clear in this case, according to Lord Justice Briggs, that failure to engage with a serious invitation to take part in ADR would likely result in costs sanctions.[3] What Lord Justice Jackson does not mention though is the extent to which the parties in a civil dispute should be compelled to engage in ADR (and specifically mediation) or should merely be expected to contemplate its use in any given dispute. This quandary is not mentioned in Lord Justice Jackson’s talk and it would appear to be conspicuous by its absence, especially in light of the Court of Appeal’s recent consideration of the issue.
This quandary returns to the spotlight once again due to two apparently conflicting decisions in the Court of Appeal. In Thakkar v Patel[4] the dispute concerned a claim for dilapidated premises and a counterclaim for rent repayment for a school. At allocation both parties appeared to favour ADR but at trial it became apparent that defendants had been reluctant to mediate at the request and timetable of the claimants and were consequently ordered to pay 75% of the claimants’ costs. On appeal Lord Justice Jackson concluded that the decision of the trial judge was within the proper ambit of his discretion. More importantly he commented that:
‘The message which this court sent out in PGF II was that to remain silent in the face of an offer to mediate is, absent exceptional circumstances, unreasonable conduct meriting a costs sanction, even in cases where mediation is unlikely to succeed. The message which the court sends out in this case is that in a case where bilateral negotiations fail but mediation is obviously appropriate, it behoves both parties to get on with it.’[5]
So far so good. The Court of Appeal underlined their commitment to ADR and specifically mediation and confirmed that since Halsey v Milton Keynes General NHS Trust[6] costs sanctions may follow if a party unreasonably refuses an offer to use ADR.
The confusion then comes with the subsequent case of Gore v Naheed & Anor. [7] This time a dispute concerning a right of way affecting the parties’ respective properties saw the claimant the overall winner with an award for costs. The defendants argued on appeal, as they had at first instance, that the judge should have viewed them more favourably because the claimant refused to engage with their proposal that the dispute be referred for mediation. Lord Justice Patten explained that:
‘Speaking for myself, I have some difficulty in accepting that the desire of a party to have his rights determined by a court of law in preference to mediation can be said to be unreasonable conduct, particularly when, as here, those rights are ultimately vindicated.’[8]
In Thakkar reference is made to the ‘dragging of feet’ resulting in costs sanctions whereas in Gore an outright refusal was not deemed unreasonable in the circumstances. Ahmed argues that these two decisions are ‘illustrative of the highly unsatisfactory state of the current ADR jurisprudence.’[9] This view is, in part, due to an earlier reflection as to when refusal to mediate might be reasonable. Lord Justice Dyson stated in Halsey[10] that a party’s reasonable belief in the merits of his case might justify a refusal to mediate and Lord Justice Patten would appear to be underlining this view.
The apparent conflict of the two cases is controversial. Of course each case is fact specific and any attempt to compel mediation has always been resisted[11] but Ahmed concludes that:
‘The continued judicial neglect in resolving the contradictory nature of the ADR jurisprudence ultimately undermines the Court of Appeal’s responsibility to provide leadership and guidance on the development of civil procedure.’[12]
It is worth remembering that Lord Justice Briggs said in PGF II that refusal to engage in ADR would not automatically result in costs sanctions but it is one of the factors to be considered. Arguably it can only be one of the factors considered otherwise it does become compulsory rather than contemplative and as Lord Dyson said back in 2011 ‘cajole them yes. Encourage them yes. But compel them, no in my view.’[13]
[1] Blake, S. et al. The Jackson ADR Handbook (2016, Oxford University Press)
[2](2014) 1 WLR 1386
[3] (2014) 1 WLR 1386 at para 1
[4] [2017] EWCA Civ 117
[5] [2017] EWCA Civ 117 at para 31
[6] [2004] EWCA Civ 576
[7] [2017] EWCA Civ 369
[8] [207] EWCA Civ at para 49
[9] Masood Ahmed, ‘Mediation: the need for a united, clear and consistent judicial voice: Thakkar v Patel [2017] EWCA Civ 117: Gore v Naheed [2017] EWCA Civ 369’ (2018) Civil Justice Quarterly, 1:1.
[10] [2004] EWCA Civ 576 at para 18
[11] See Lord Diplock’s comments in Bremer Vulkan Schiffbau und Maschinenfabik v South India Shipping Corp Ltd [1981] AC 909
[12] Masood Ahmed, ‘Mediation: the need for a united, clear and consistent judicial voice: Thakkar v Patel [2017] EWCA Civ 117: Gore v Naheed [2017] EWCA Civ 369’ (2018) Civil Justice Quarterly, 1:4
[13] Lord Dyson, A Word on Halsey v Milton Keynes, 77(3) ARB. 337, 338 (2011).
Perhaps it is an appropriate time to consider compulsory mediation in all civil and family matters in the UK Courts as what pertain in the Canadian Courts
Thanks for Mr. Jago’s contribution.
I think ADR is helpful for achieving the overriding objective of the CPR. However, for those who would like to get injunction from the court or what if that would be highly probably for them to win the case, may prefer to put the opposite side on the table and refuse to have mediation. Therefore, going to ADR or not is subject to what remedies that the parties are looking for.
I think the most confusing is the “unreasonable conduct to refuse ADR” that the court think becase Dunnett case tells us that refusal to ADR could be taken into account on costs but doesn’t mean that cost sanctions must be followed. There is no clear cut on what conduct would equal to ” unreasonable”, that makes ADR looks like compulsory rather than possibility.
Mediation is perhaps the most relaxed and informal of ADR proceedings . A significant advantage of mediation is that it can save considerable costs by ending litigation early , but mediation itself involves costs . Part of this is the mediator’s fee . Also , the main disadvantage of mediation is that you may not end up reaching a settle agreement so that the dispute will ultimately end up in court . This may be because parties cannot stand to be in the same room with each other and communication has no chance of being successful . Similarly , if one party is timid and the other party aggressive , the timid party may not be awarded what is legally theirs due to mediation being focused on compromise .