Following the UK's recent general election, Ciarb outlines seven recommendations for the Government of the United Kingdom (GovUK) to consider following the 2024 General Election:

(1) Renew support for the rule of law, access to justice, and private dispute resolution;

(2) Reintroduce the Arbitration Bill;

(3) Reintroduce the Litigation Funding Agreements (Enforceability) Bill;

(4) Progress with the integration of mediation into the civil justice system;

(5) Support the adoption of recommended changes to the Civil Procedure Rules following Churchill v Merthyr Tydfil;

(6) Ratify the Singapore Convention on Mediation; and

(7) Integrate ADR mechanisms into infrastructure agreements and public procurement guidance.

Recommendation 1: Renew support for the rule of law, access to justice, and private dispute resolution

Ciarb recommends that the GovUK continues to be a global champion for the rule of law and access to justice by promoting the use of private dispute resolution. Private dispute resolution mechanisms can enable access to justice for citizens and businesses by providing efficient and effective routes to resolve disputes amicably without the need to go to court. By facilitating the use of private dispute resolution mechanisms, the GovUK can reduce domestic court backlog, strengthen the UK’s trade and investment environment, bolster the UK’s status as a global dispute resolution hub, and nurture the legal services sector. Ciarb is committed to training and certifying a cadre of high calibre dispute resolution professionals who can service both domestic and cross-border disputes in the UK and around the world. We will support any efforts and initiatives from the GovUK to facilitate private dispute resolution, strengthen the rule of law, and improve access to justice in the UK.

Recommendation 2: Reintroduce the Arbitration Bill

Ciarb recommends that the GovUK reintroduces the Bill to amend the Arbitration Act 1996 (the Arbitration Bill). As a leading professional body for dispute resolvers, we welcomed the review of the Arbitration Act 1996 to modernise the legislation and ensure that the needs of parties and arbitrators are being met. We support arbitration-related reforms that will uphold the high standards and reliability of the United Kingdom and the City of London as a global centre for arbitration and to strengthen, clarify and widen the practice of arbitration. As part of the Law Commission’s consultations and thorough review of the Arbitration Act 1996, Ciarb submitted three responses in December 2022, March 2023, and February 2024. We were pleased to see that most of Ciarb’s recommendations were included in the Law Commission’s June 2023 report and the current version of the Arbitration Bill as of May 2024. Ciarb supports the proposed reforms in the latest version of the Arbitration Bill and believe that these reforms will have a positive impact on the United Kingdom and the City of London as a continued important global centre for arbitration. As such, Ciarb recommends that the GovUK reintroduces the Arbitration Bill.

Recommendation 3: Reintroduce the Litigation Funding Agreements (Enforceability) Bill

Ciarb recommends that the GovUK reintroduces the Litigation Funding Agreements (Enforceability) Bill (Litigation Funding Bill) to legislate that litigation funding agreements (LFAs) are not damages-based agreements (DBAs) in England and Wales. This would return the jurisdiction to the position that existed before July 2023 when the UK Supreme Court ruled in R (PACCAR Inc) v Competition Appeal Tribunal [2023] (PACCAR) that LFAs could be DBAs if the funder’s remuneration was based on a percentage of the damages recovered. LFAs are a financial arrangement where a third party (usually an independent financial entity) with no prior connection to the dispute, agrees to pay the claimant’s legal costs in exchange for a share of the proceeds if the case is won. No fee is payable if the case is lost.

LFAs are often used in commercial arbitration or group litigation claims. Claimants (especially individuals and small businesses) may choose to apply for this funding in situations where they would not otherwise be able to afford to pursue the case. For example, litigation funding was crucial in helping victims of the recent Post Office Horizon scandal to be heard and pursue justice. The PACCAR decision created concern and confusion among ADR professionals, the funding industry, and from parties about whether LFAs would be unenforceable in the UK market. This uncertainty resulting from the PACCAR case risks impacting access to justice for everyday citizens who rely on LFAs to be able to bring their claims and could also damage the commercial attractiveness of the UK as a global disputes hub. The Litigation Funding Bill would remedy the uncertainty flowing from the PACCAR case and clarify through legislation that LFAs are not DBAs. As such, Ciarb recommends that the GovUK reintroduces Litigation Funding Bill.

Recommendation 4: Progress with the integration of mediation into the civil justice system in England, Wales and Northern Ireland

Ciarb recommends that GovUK continues the collaboration between the judiciary, civil service and mediation community to provide fast, workable outcomes generated through the mutual agreement of disputing parties both in advance of legal claims and at the earliest possible point of the legal claims process.

Ciarb therefore advocates strongly for the support of GovUK to support the ongoing process between dispute resolution expert organisations, including but not limited to Ciarb, with HM Revenue & Customs and the Ministry of Justice to provide quality assured mediation services for court referred mediation for cases above £10,000.

Considerable work and consultation has been done with the Civil Service and previous ministers by Ciarb, the Centre for Effective Dispute Resolution (CEDR), the Royal Institution of Chartered Surveyors (RICS) and the Civil Mediation Council (CMC) to develop proposals of how such as system could work to ensure that the public can have trust and confidence in mediators they choose to appoint. We look forward to engaging with GovUK and particularly the MoJ as soon as it is considered helpful.

Recommendation 5: Support the adoption of recommended changes to the Civil Procedure Rules following Churchill v Merthyr Tydfil

The recent case of Churchill v Merthyr Tydfil  [2023] EWCA Civ 1416 reaffirmed the principle that parties should seek to resolve their differences if possible before starting legal proceedings, and certainly to do so once legal proceedings have been started. Churchill also enables judges to order and/or stay proceedings for parties to participate in non-court-based dispute resolution processes failing which parties can penalised.

Ciarb welcomes this development as it removes an obstacle to the swift and effective resolution of civil claims. Through the use of mediation, parties arriving at mutually acceptable outcomes where possible will reduce the caseload of the courts and reduce the economic cost of slow and costly waits for court time.

The Judicial Liaison Committee has recently consulted with stakeholders, including Ciarb, on recommended changes to the Civil Procedure Rules arising out of the Churchill judgment. We encourage GovUK to support these changes to enable judges to manage cases effectively and to reinforce the requirement of parties and lawyers to comply with the overriding objective of proportionality.

Recommendation 6: Ratify the Singapore Convention on Mediation

GovUK signed the Singapore Convention on Mediation in 2023. This has led to international approval and recognition of the UK as an active participant in the move to effective dispute resolution through mediation in international disputes.

This development does have a potentially significant impact on the economy and on the UK as a place to do business and to deal with legal disputes. Ciarb therefore strongly advocates that GovUK ratifies this convention in the coming year. Failure to do this may well be seen as a sign that the UK is not as committed to effective dispute resolution as expected and will make it a less attractive venue for dispute resolution.

Ciarb would welcome the opportunity to discuss any of the issues raised above and to provide more detailed information and rationale as required.

Recommendation 7: Integrate ADR mechanisms into infrastructure agreements and public procurement guidance

ADR mechanisms such as arbitration, mediation, adjudication, expert determination, and dispute avoidance boards (or dispute adjudication boards) are useful tools to resolve and avoid disputes, especially in complex infrastructure development projects. Ciarb supports the work that the GovUK has done to integrate these mechanisms into the justice system, such as statutory adjudication in the construction industry. We also support the GovUK’s formal endorsement of the construction industry’s Conflict Avoidance Pledge, the call for use of dispute boards in the GovUK’s Construction Playbook, and the GovUK model clause for public sector NEC contracts to introduce a conflict avoidance process panel in addition to the other standard dispute resolution provisions.

We recommend that the Government integrates ADR mechanisms into public procurement agreements via dedicated clauses and public procurement guidance in line with best practice as set out in the Conflict Avoidance Pledge. We also recommend that these clauses are drafted to ensure that parties have access to a pool of high-quality experts and neutrals.

Ciarb would welcome the opportunity to engage with the GovUK on how to further integrate ADR mechanisms into public infrastructure projects and public procurement processes.