Changes to the Civil Procedure Rules of England and Wales came into force on 1 October 2024 as a direct consequence of Churchill. In effect, these embed promotion of mediation and alternative dispute resolution in the civil justice system.

The amendments to the Civil Procedure Rules (CPR) of England and Wales bring the Rules in line with the judgment in the Churchill v Merthyr Tydfil Borough Council (Churchill) case. The impact of the changes, in force from 1 October 2024, may be summarised as follows:

• Embedding the use and promotion of ADR

Rule 1 enshrines the overriding objective of civil justice and is often used to measure the exercise of judicial discretion. This Rule is expanded to include, when enabling the court to deal with cases justly and at a proportionate cost, the use and promotion of alternative dispute resolution (ADR). In other words, ADR is now an objective of achieving civil justice which can include ordering (as well as encouraging) parties to use an ADR procedure if the court considers it appropriate.

• Clarifying the ability to order participation in ADR

The court’s management powers of over ADR have been clarified. This includes he ability of the court to order parties to participate in ADR or stay proceedings pending participation and take other steps (for example, using early neutral evaluation with the aim of helping the parties to settle).

• Application of ADR in multitrack cases

When giving directions in the context of multitrack cases – litigation of value and complexity – the court must consider whether to order or encourage the parties to participate in ADR.

• Cost sanctions for non-compliance or failure to engage

In relation to cost provisions, 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.

Catherine Dixon, CEO of Ciarb, said, “The CPR changes could enable a cultural shift in how ADR is viewed and used by parties, lawyers and the judiciary ADR is now enshrined as part of the overriding objective for civil justice – this is a significant change. In dealing with a case justly and at a proportionate cost, the promotion or use of ADR, including mediation, must be considered and the courts can now order ADR or stay proceedings pending ADR. . ADR is an essential means of access to justice with manifold benefits for parties and the court system, enabling faster and more cost-effective resolution of disputes. It will be interesting to see whether these changes pave the way for the increased use of ADR in England and Wales as well as globally. I am proud of the role Ciarb played in bringing about these important changes.”

Ciarb’s role in bringing about change

The Churchill case gave the Court of Appeal the opportunity to overturn what was confirmed by the case judgment to be the orbiter findings of Lord Justice Dyson in the case of Halsey v Milton Keynes NHS Trust 2004 (Halsey).  The 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.

Most commentators thought Halsey was erroneous on this point because even if the parties are ordered to mediate, they are not ordered to settle and provided it is agreed, they still continue to have access to the courts.

Nevertheless, Halsey continued to stand and since 2004 was viewed by many as being the thorn in the side mediation. This was despite the fact that the then Civil Procedure Rules stated that the court must actively manage cases including by encouraging the parties to use alternative dispute methods such as mediation (rule 1.4) and include, in practice directions, the expectation that the parties should engage with each other in a genuine attempt to settle the dispute before taking the matter to court. In this regard the court may also impose costs sanctions on parties who unreasonably refuse to mediate.

Ciarb united with the Civil Mediation Council (CMC) and Centre for Effective Dispute Resolution (CEDR) to jointly, and successfully, intervene in Churchill.

In its judgment in Churchill, the Court of Appeal held that the court could lawfully stay proceedings for, or order, the parties to engage in non-court based dispute resolution process 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.

Subsequently, the Civil Procedure Rules Committee examined the Rules and concluded that changes were necessary to bring them in line with the judgment.

Ciarb, CMC and CEDR again united to issue a joint response to the CPR Committee consultation in June 2024, broadly supporting the amendments.

Churchill and the CPR amendments have given England and Wales the opportunity to make systematic long-term change to ensure ADR is fully embedded into the civil justice system. Churchill has also opened the door for other changes being considered by the Ministry of Justice which may include the integration of mediation into the civil justice process.

Read about the successful joint intervention by Ciarb, CMC and CEDR in Churchill.

Read the joint response from Ciarb, CMC and CEDR to the CPR consultation.