Court Orders ADR without party consent
On 6th August the CA handed down a judgment determining that an Early Neutral Evaluation (“ENE”) could be ordered by the Court and that it did not require the consent of the parties. In Lomax v Lomax [1] Moylan LJ handed down a brief leading judgment. Although confined to ENE it seems inevitable that it will be of wider importance when considering the various forms of ADR that are now encouraged by the Court. In particular he noted that “the Court’s engagement has progressed significantly since Halsey v Milton Keynes[2] was decided.” It is pertinent to note too that Moylan LJ approved the comments of Norris J in Bradley & Bradley v Heslin & Heslin[3]:
“…..it is no longer enough to leave the parties the opportunity to mediate and to warn of costs consequences if the opportunity is not taken. In boundary and neighbour disputes the opportunities are not being taken and the warnings are not being heeded, and those embroiled in them need saving from themselves.”
Mandatory mediation for boundary disputes?
It is acknowledged that Lomax does not determine whether a party could be compelled to mediate. (Norris J in the lower Court acknowledged that the “truly unwilling party” could not be obliged to mediate) but Halsey is a case determined 15 years ago and there have been huge changes in the civil environment since then (the “Jackson” reforms, LASPO, Fixed Recoverable Costs, litigation funding and more). Many leading commentators have called for a review as did the Civil Justice Council in November last year[4].
The question therefore arises as to what might be the relevant factors a Court will consider if Halsey were to be reviewed. In June this year the Bonavera Institute of Human Rights organised a Conference to mark the 20th anniversary of the introduction of the Civil Procedure Rules. It was interesting to hear the observations of two former Masters of the Rolls (Dyson / Neuberger) commenting on the “enormous impact” of the Overriding Objective in shaping judicial thinking. In my next blog I will briefly review some of the key components of CPR 1.1 when considering the arguments that might be advanced when determining the “unreasonable refusal to mediate”.
[1] [2019] EWCA Civ 1467
[2] [2004] 1WLR 3002
[3] [2014] EWHC 3267 (Ch)
[4] ADR and Civil Justice, Final Report of the Civil Justice ADR Working Group, December 2018
