ADR is not mandatory in the UK, save where agreed by the parties in contract (although there have been orders made by individual judges in exceptional cases). That said, the use of ADR is now firmly enshrined in the English Civil Procedure Rules. The court has a positive obligation to encourage parties to use an ADR procedure if the court considers it appropriate and to facilitate the use of such a procedure. Failure to consider ADR can result in adverse costs consequences. Recent cases have highlighted the importance the court is attaching to ADR.
In April 2002, the Court of Appeal’s decision in Dunnett v Railtrack Plc [2002] 2 All ER 850 highlighted the necessity for lawyers and parties to consider Alternative Dispute Resolution (ADR), failing which a party may be penalised in costs. This decision was not wholly unexpected. In the earlier case of Cowl v Plymouth City Council [2002] 1 WLR 803, Lord Woolf, in his judgment in the Court of Appeal, stated in the context of a judicial
