Go Ahead, Make My Day: Adverse Costs Orders For Refusal To Engage With ADR

Introduction

Most disputes are capable of solution through a suitable alternative dispute resolution ("ADR") process. It remains the most efficient and cost effective way to resolve outstanding issues between parties to litigation. Despite the attractions of ADR, many parties refuse to contemplate its use and often dismiss it out of hand or attempt to argue that it is not appropriate in the circumstances.

This article examines the English courts' approach to the refusal of a party to litigation to engage with an ADR process suggested by another party or the court. It sets out the law in the leading case of Halsey v Milton Keynes General NHS Trust [2004] 1 WLR 3002 and analyses how the Halsey decision has been applied in several recent cases. The article concludes with advice on how to avoid the imposition of an adverse costs order by the court for refusal to engage with ADR.