Traditionally, in the English legal system, whether in the civil or criminal context, people involved in a dispute or other entanglement went to court. In the criminal jurisdiction, of course, this was, and is, more or less unavoidable due to the principles of the criminal law system. Apart from the role of Magistrates in judging summary offences, those accused of more serious criminal offences have the right to a fair and open trial before an impartial jury. This is a hard principle to replace with anything other than the court option. It is the civil jurisdiction, however, that great developments have been made in order to provide alternative means of settling disputes. The rationale behind these has been what is called the ‘overriding objective’ of the relatively new Civil Procedure Rules, which is to proceed in a manner that saves the court’s time, and ultimately, which aims to reduce the number of cases reaching court. Given the attractiveness of these alternative options, then, why do so many people, whether individually or acting as agents for companies in the commercial context, still opt to go to court to settle their dispute?
In 1994, an enquiry was set up and headed by Lord Justice Woolf. This itself considered and made use of earlier recommendations that had appeared in the recent Civil Justice Review, which included the need to combat delay in proceedings. According to the Review, delay caused increased personal stress and anxiety, it led to increased financial pressures on the parties which often led to their agreeing to much-reduced settlements, it had adverse effects on the quality an availability of evidence, and more generally it lowered public esteem of the legal profession. Woolf also considered the recommendations of the Heilbron-Hodge Committee, which had been set up by the Law Society and Bar Council jointly, and which had reported in 1993, showing the profession’s own dissatisfaction with the civil justice system. A principal recommendation of this Committee was that the court should take over control of cases. ‘Litigants and their lawyers need to have imposed upon them, within sensible procedural time-frames, an obligation to prosecute and defend their proceedings with efficiency and despatch. Therefore, once the process of the court is invoked, the court should have a more active and responsible role over the progress and conduct of cases.’ The point of this is to show that disaffection with the whole civil justice system was widespread and the background to Woolf’s enquiry was in favour of substantial reform to the traditional mode of going to court with every dispute.
When Lord Woolf produced his interim report in 1995, he highlighted the fact that courts did not exercise a sufficient degree of control over cases: ‘In particular there is no clear judicial responsibility for managing individual cases or for the overall administration of the civil courts.’ In his final report, published a year later in July 1996, Woolf set out his key objectives as being to encourage parties to explore alternatives to court resolution of disputes (the most significant for present purposes), to produce a single set of rules governing proceedings, a shorter, more efficient timetable for cases to reach court, and more affordable litigation. In terms of the first aim, to encourage alternative forms of dispute resolution, the pre-action protocols were introduced. These essentially lay out a procedure which must be followed by litigants before they bring their case to court. It can be argued that these protocols (there is a slightly different protocol based along the same lines for each type of claim) have done more than anything else to encourage early resolution to disputes. While they are not, technically, an alternative form of resolution, because it is mandatory that litigants follow the protocols, which include sending letters of claim and asking for a settlement from the outset, if there is a chance of settlement, it will be achieved at these early stages, thereby saving great time and expense.
The real types of Alternative Dispute Resolution (ADR) are set out in CPR Rule 1.4(2)(e) which states that the court must encourage the parties to litigation to use these alternative methods. The case law reveals that the courts have taken a stringent view of this, stating that even judicial review proceedings should not be allowed to go ahead if a significant part of the issues could be resolved by ADR (R (Cowl an Others) v Plymouth City Council  EWCA Civ 1935). Lord Woolf himself, speaking in judgement on this case, stated that it may be appropriate for the court, on its own initiative, to hold an inter-parties hearing in which the litigants would have to explain the steps they had taken to resolve the dispute without the court’s involvement. This reflects two important things. Firstly, it shows the stringent manner in which the courts are interpreting the Woolf Reforms in relation to ADR. Secondly, however, it reflects the early unwillingness of parties of litigants to adopt methods of ADR. This stringent approach of the courts would be unnecessary if litigants had been wholly willing from the outset to pursue other methods. The principal reason appears to be a lack of trust in ADR. The reforms are still relatively new, and in lay circles, a level of ignorance and attendant mistrust surrounds them. This, it can be argued, is not a fundamental problem, but rather a phenomenon to be expected with such a fundamental change to the process of litigation. It will, as people get used to it, be less of an issue for litigants to pursue ADR as they see its potential benefits.
The common preference for court appearances to settle disputes is based, as discussed above, on (relative) knowledge and familiarity of the court system, and a belief that only a court appearance can ensure a fair and just outcome to the dispute. Once again, however, this is based wholly upon a misconception of what ADR can offer, always underlined, of course, by the fact that the court remains the ultimate arbiter, to whom reference can be made where a suitable and mutually acceptable conclusion cannot be reached by methods of ADR. The preference for court appearances cannot continue for long, however, as those who single-mindedly pursue a court hearing are increasingly being penalised. In the case of Dennett v Railtrack plc (in administration)  EWCA Civ 303, for example, the court issued cost penalties to the parties because they had failed to use ADR. In giving judgement in this case, Brooke LJ stated that ‘It is hoped that publicity will draw the attention of lawyers to their duties to further the overriding objective … and to the possibility that, if they turn down out of hand the chance of alternative dispute resolution when suggested by the court, as happened on this occasion, they may have to face uncomfortable cost consequences.’
Despite this apparently strict court interpretation of their role of ‘encouraging’ ADR, there still remains a common preference for court appearances. While this is often based on a lack of sufficient knowledge and trust of methods of ADR such as mediation, there are, occasionally, more valid causes of this preference. These would include the nature of certain disputes, which might render them unsuitable for ADR. Such cases would include those where there was a point of law or interpretation in issue, or injunction cases. If, on the merits of the case, a party believes his case is watertight and there is no chance of anything other than a successful claim, he may be justified in refusing ADR. Another factor that might apply in cases of smaller claims is the cost of mediation which might render it an unsuitable option. Furthermore, where mediation does not have any reasonable chance of success, it may be unsuitable. These factors were set out by Lord Justice Lawton as being relevant to the court in deciding whether to impose a financial penalty on the parties for failing to pursue ADR, but they also reflect the main reasons amongst the public for preferring the traditional route (Halsey v Milton Keynes General NHS Trust and Steel v Joy and another  EWCA Civ 576).
The court, then, is under an obligation to encourage the use of ADR. This is necessary to combat the common preference for court appearances, which is largely based on a lack of knowledge and mistrust of the new options ushered in by the Woolf Reforms. This preference, however, cannot continue for long, as the courts have shown themselves willing to impose penalties for failing to adopt ADR. What should be remembered is that ADR does not replace the traditional court system, and should be seen rather as a new, intermediate step, which can save time, expense, and adverse publicity for the litigants involved.
- Burn, S., ‘The Woolf Reforms in Retrospect’ (2003) Legal Action 8
- ‘Civil Justice on Trial – the Case for Change’ (1992), quoted in Huxley-Binns and Martin (2005)
- Elliot, C., and Quinn, The English Legal System (Oxford, 2004)
- Huxley-Binns, R., and Martin, J., Unlocking the English Legal System (Hodder Arnold, 2005)
- Interim Report of the Woolf Report, Inquiry into Civil Justice, Access to Justice (1995), quoted in Huxley-Binns and Martin (2005)
- Newark, C., ‘In Praise of ADR’  NLJ 1896-1897