With immediate effect when considering the award of costs in any claim the High Court "MUST" take into account, and may call for evidence to determine, whether the parties gave proper consideration to the use of Alternative Dispute Resolution (ADR).
Ever since the introduction of the Woolf Reforms in 1998 the court has been increasing the pressure on the parties to use ADR through the Overriding Objective, the Civil Procedure Rules, the Pre-Action Protocols and numerous judgments. In the latest turn of the screw, by virtue of a new Practice Direction, all of the Pre-Action Protocols now include a mandatory provision that the court MUST in future take into account when considering the issue of costs whether the parties have given proper consideration to the use of ADR. To emphasise the court's attitude to this issue, the Protocol states that, ‘The Courts take the view that litigation should be a last resort’. Most interestingly the Protocol specifies that the court may require any of the parties to provide evidence that alternative means of resolving their dispute were considered. We have already seen in Dunnett v Railtrack [2002] 2 ALL ER 850 that the courts will penalise a winning party in costs for failing, in its opinion, to have given proper consideration to the use of ADR and this latest change will result in an increase in such cases.
To view the full text of the Protocol, click here.
This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to www.law-now.com/law-now/mondaq
Law-Now information is for general purposes and guidance only. The information and opinions expressed in all Law-Now articles are not necessarily comprehensive and do not purport to give professional or legal advice. All Law-Now information relates to circumstances prevailing at the date of its original publication and may not have been updated to reflect subsequent developments.
The original publication date for this article was 12/04/2006.
