Refusing ADR: When Will The Courts Impose Costs Sanctions?

Two years into the ADR reforms, John McElroy and Dr Kirstie Imber examine the boundary between reasonable resistance and costly non-engagement.

Key Takeaways

• The CPR now expressly includes promoting or using ADR within the court's overriding objective.
• Courts can order parties to engage in ADR under their case management powers.
• Unreasonable refusal to participate in ADR can have adverse costs consequences.
• A reasoned refusal to mediate may be justified, depending on the circumstances of the dispute.
• Litigators should document their clients' reasons for delaying or declining ADR.

The civil litigation landscape has changed significantly since the Court of Appeal's landmark decision in Churchill v Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416. Following amendments to the Civil Procedure Rules (CPR) in October 2024, alternative dispute resolution (ADR) is no longer separate from the court process but a core component of it.