With the new financial year upon us, it is a good time to reflect on the past year and look ahead to what we anticipate in the coming year(s).
Alternative Dispute Resolution (ADR) refers to any ‘non-judicial’ way of resolving claims and disputes, and includes things such as arbitration, mediation, expert determination, and early neutral evaluation.
In 2023, the case of Churchill v Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416 saw the Court compel the parties to engage in ADR in an attempt to resolve their dispute out of court.
From 1st October 2024, the Overriding Objective in the Civil Procedure Rules (CPR), has been amended to include an encouragement in “promoting or using alternative dispute resolution”. The Court’s powers of case management at CPR 1.4 now includes “ordering or encouraging the parties to use, and facilitating the use of, alternative dispute resolution”.
The November 2024 case of DKH Retail Ltd and others v City Football Group Ltd [2024] EWHC 3231 (Ch) saw the Court grant an Order for compulsory mediation, even where one of the parties did not consider there to be a realistic prospect of success (the case settled at the mediation!)
The Courts are experiencing huge backlogs, with significant delays for hearing dates, trials, and even processing applications, filings, and orders.
The use of ADR could mean a dispute is settled much quickly, not only saving you the time and effort of court proceedings but the legal costs associated with them. Additionally, given parties have significant delays and fallow periods in the life of a claim, it seems sensible to attempt to use this time productively. ADR also allows parties the freedom negotiate a settlement that works for all parties, allowing options that may not be realistically available in a court judgment (such as future trading agreements or transferring assets as consideration).
2025 is likely to see an increased use of mediation and other forms of ADR, with the courts actively ordering it.
A pre-action protocol is a set of rules which govern how a claim should be managed before the claim is issued at court. Failure to comply with the applicable protocol could result in a costs order being made against you.
The Civil Justice Council (CJC) have been reviewing the pre-action protocols since November 2021, when their interim report was published. Part two of the final report was published in November 2024.
The CJC recognises that pre-action protocols play a crucial role in facilitating dispute resolution, ensuring it is proportionate and fair.
Among the recommendations are amendments to include having a way to enforce compliance and imposing sanctions for non-compliance.
This is increasingly important for parties as they may need to consider whether they have properly complied with the pre-action protocol before issuing proceedings to avoid any future sanctions, if and when they come into force. As such, it may be even more valuable to take early professional advice if a dispute is considered.
In June 2024, the UK government ratified the Hague Convention 2019. Formally known as the Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters and it is set to come into force on 1 July 2025. The aim is to establish a unified framework for recognising and enforcing foreign judgments between the contracting states. Alongside the UK, all EU countries (save for Denmark), as well as Ukraine and Uruguay have ratified the Convention and it is anticipated more countries will follow.
The Hague Convention 2019 seeks to remove the requirement of an exclusive jurisdiction clause to be able to follow that process and looks to create a more predictable enforcement process – hopefully making it easier and quicker, which in turn means cheaper.
If you would like further information about the above topics or are seeking advice as to a dispute you are involved in, please contact our Dispute Resolution team here.
The information on this site about legal matters is provided as a general guide only. Although we try to ensure that all of the information on this site is accurate and up to date, this cannot be guaranteed. The information on this site should not be relied upon or construed as constituting legal advice and Howes Percival LLP disclaims liability in relation to its use. You should seek appropriate legal advice before taking or refraining from taking any action.
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