Changes to the Civil Procedure Rules (CPR) in England and Wales have
come into force as a consequence of the Churchill judgment. Ciarb CEO Catherine Dixon MCIArb asks where we go from here.

It is just over a year since the Court of Appeal handed down its Churchill judgment which overturned the case of Halsey v Milton Keynes NHS Trust [2004] (“Halsey”), thereby enabling courts in England and Wales, to order parties to undertake non-court based resolution or to order a stay of proceedings, pending non-court based dispute resolution.

To remind readers, Ciarb joined forces with the Civil Mediation Council (CMC) and the Centre for Effective Dispute Resolution (CEDR) to successfully intervene in Churchill v Merthyr Tydfil Borough Council (“Churchill”). In its judgment, the Court of Appeal held that a court could lawfully stay proceedings or order parties to engage in non-court-based dispute provided that the order does not impair the very essence of the claimant’s right to proceed to a judicial hearing and is proportionate to achieving the legitimate aim of settling the dispute fairly, quickly and at a reasonable cost.

In short, the Churchill case gave the Court of Appeal the opportunity to overturn what was confirmed by the judgment to be the obiter findings of Lord Justice Dyson in the case of Halsey. The now overridden Halsey judgment stated that ordering parties to mediate would breach article 6 of the European Convention on Human Rights: the right to a fair trial. Many commentators thought Halsey was wrong because even if parties are ordered to mediate, they are not ordered to settle and, provided it is agreed, they still have access to the courts.

Halsey was viewed by many as a thorn in the side of mediation. And the Court of Appeal in Churchill concurred. As a result, the Civil Procedure Rules (CPR) Committee consulted on the CPR suggesting changes to take the Churchill judgment into account, and concluded that changes to the CPR were necessary to bring them in line with the judgment.

These changes to the CPR came into force on 1 October 2024:

• Most notably CPR Rule 1 – which enshrines the overriding objective of civil justice and is often used to measure the exercise of judicial discretion – is expanded to include, when enabling the court to deal with cases justly and at a proportionate cost, the use and promotion of ADR. In other words, ADR is now an objective of achieving civil justice, which can include ordering the parties to use an ADR procedure if the court considers it appropriate.
• The next set of amendments relate to clarifying the court’s management powers over ADR, which include the ability to order parties to participate in ADR, or stay proceedings pending participation and take other steps, including for example, using early neutral evaluation with the aim of helping the parties to settle.
• In terms of case management in multitrack cases, (litigation of value and complexity), when giving directions, the court must consider whether to order (or encourage) the parties to participate in ADR.
• The final amendments relate to cost provisions and the way litigation is conducted is identified as the possible basis of sanctioning unreasonable behaviour. The court can now consider whether a party failed to comply with an order for ADR or failed to engage in ADR proposed by the other party. The response to the consultation by Ciarb, CMC and CEDR did result in a change from the original wording in the consultation of ‘participate’ to ‘engage’.

So what’s next for ADR in England and Wales as a consequence of Churchill and the changes to the CPR?

There is no doubt the CPR changes herald a change in how mediation and private dispute resolution are viewed in the civil justice system in England and Wales, and that they have enabled, and will continue to enable, faster and more cost-effective resolution of disputes. But are there other implications?

As the Churchill case progressed, Ciarb, the CMC, CEDR and the Royal Institution of Chartered Surveyors (RICS) were in simultaneous discussion with the Ministry of Justice about how mediation might be successfully integrated into the civil justice system. That is to say, how it could be ensured that prospective mediators are trained to an appropriate and agreed standard.

It is no overstatement to say Churchill opened the door to amendments to the CPR, which has given England and Wales the opportunity to make systematic long-term changes relating to the use of non-court-based dispute resolution.

However, for mediation and other ADR processes to become embedded and second nature to those advising parties in litigation, the courts will need to exercise their new powers if parties fail to consider and where appropriate use such processes.

What remains unclear is whether and/or how mediation will be integrated into the civil justice system.

In conclusion, the Churchill judgment could have a significant impact on the future of litigation culture in England and Wales if judges exercise their discretion to order non-court based dispute resolution. If these new powers are widely exercised, ADR mechanisms may cease to be viewed as an alternative process and could become an integral mechanism in the delivery of civil justice.