A guest post by Tony Guise, director of DisputesEfiling.com Limited, a provider of online ADR platforms, and a past president of the London Solicitors Litigation Association
A recent decision in the Court of Appeal concerning ADR is striking for a number of reasons, not least of which is the perceived restriction of the citizen’s right to exercise his or her right to a fair trial (under article 6 of the European Convention on Human Rights).
Pauline Lomax v Stuart Lomax  EWCA Civ 1467 concerned a claim by a widow under the Inheritance (Provision for Family and Dependants) Act 1975 for provision from the estate of her late husband against her step-son as co-executor and beneficiary. Thus the scene was set for classic, asset-consuming litigation.
Pauline Lomax was seeking an early neutral evaluation (ENE) but Stuart did not want it. So far, so familiar. Under CPR 3.1(2)(m), an application was made for the court to order an ENE to take place. The question was whether the court could do so absent one party’s consent. This issue was thrashed out in the High Court, with judgment handed down on 20 May 2019.
Meanwhile, late last year, the final report of the Civil Justice Council’s (CJC) review of ADR was published. This contained the not-uncontroversial recommendation that in civil litigation “there [should be] effectively a presumption that ADR will be attempted in any case which is not otherwise settled” (recommendation 20(a)).
Recommendation 21 went on: “The Halsey guidelines for the imposition of costs sanctions should be reviewed and should narrow the circumstances in which a refusal to mediate is regarded as reasonable.”
This approach mirrors the eventual course of Lomax, for whilst Mrs Justice Parker wrestled long and hard about whether the parties could be compelled to undertake an ENE, the Court of Appeal found they could be.
The court seemed to have recommendation 21 in mind when finding that, in effect, the principles in Halsey were now out of date: “The court’s engagement with mediation has progressed significantly since Halsey was decided.”
The most interesting thing about Lomax is, however, not whether the Court of Appeal’s findings are ratio or obiter but the time taken for the first-instance decision to travel on appeal from Manchester to the Royal Courts of Justice. At a time when the Court of Appeal lacks judges, the delay in hearing appeals has reached 730 days; in Lomax, the Court of Appeal gave extempore judgment in only 77 days after the case was heard by Parker J.
A senior civil servant at the Ministry of Justice observed to me recently that such rapid progress alone is a clear signal of the Court of Appeal’s intentions: the direction of travel is toward compulsory ADR, by one route or another.
This advance for ADR in civil justice is due to the foresight, thinking and advocacy of Christopher Buckingham for Pauline Lomax and appeared both at first instance and on appeal.
Perhaps this decision is simply part of the modern trend toward the integration of ADR within the civil litigation system. After all, England and Wales has had compulsory ADR in family law (Mediation Information and Assessment Meetings (MIAMs) and mediation) for several years and funded by the state via legal aid.
Turkey, Italy and other jurisdictions have introduced compulsory forms of ADR with great success in terms of bringing swift justice for the citizen. Scotland has recently seen a consultation close which proposes introducing a compulsory MIAM-like system. On 16 August 2019 Portugal introduced a system whereby one party can compel the other to engage in compulsory arbitration or mediation for consumer disputes up to €5,000.
By the end of this year, there will be an opt-out mediation scheme as part of the new Money Claims Online Portal, while the CJC’s new report on fixed recoverable costs in clinical negligence claims worth up to £25,000 suggests introducing mandatory (though non-binding) neutral evaluation.
Lord Justice Moylan, giving the unanimous judgment of the Court of Appeal in Lomax, held: “In my view, an ENE hearing is not an obstruction to or constraint on a party’s access to the court.”
Does Lomax and the CJC ADR report represent a Constantinian shift toward more ADR? If they teach anything, it is that litigators can no longer work in silos and that ADR is soon to be fully integrated into civil litigation as it is elsewhere in England and Wales.
If strategies are not in place now for training fee-earners and managing client expectations about ADR, then now is the time to do it: ADR is an irresistible part of their litigation journey.