Rules Committee considers changes in light of Churchill decision

I have previously written about the landmark decision of Churchill v Merthyr Tydfil CBC [2023] EWCA Civ 1416 in which the Court of Appeal confirmed that courts may order parties to use mediation or other forms of ADR as part of their case management functions.

The Civil Procedure Rules Committee launched a consultation seeking views on proposed draft amendments to the CPR which would make the court's ruling explicit in the Rules. I will take a brief look at the proposed changes and what they may mean for inheritance dispute practitioners and how you can prepare for them. 

The proposed Rules changes

• Changes to 1.1 would add that dealing with a case justly and at proportionate cost includes, so far as practicable, using and promoting ADR methods. Reference to ADR within the overriding objective would underline that considering the use of ADR should be a key part of the court process.
• Changes to 1.4 and 3.1 would clarify the position established in Churchill v Merthyr Tydfil that judges may order as well as encourage parties to participate in ADR procedure.
• Changes to Parts 28 and 29 would add that courts must consider whether to order or encourage parties to participate in ADR for fast-track, intermediate track and multitrack claims.
• Changes to Part 44 would add that failure to comply with an order for ADR or unreasonable failure to participate in ADR proposed by another party would come under the consideration of the conduct of parties when deciding to make any order about costs.  

What this means for contentious probate litigators

Although this is a consultation on the draft rules and the changes have not yet made it is clear from the decision in Churchill that parties can now turn to the courts for assistance in getting reluctant opponents to mediate. I know from my experience mediating will disputes that costs can be a significant barrier to resolution. Those costs can be reduced by attempting mediation earlier in the proceedings and now you can look to the courts for assistance in making that happen.

If it is your client that is reluctant to mediate they may face the prospect of applications from opponents for orders to mediate with potential costs consequences. A decision to decline an offer to mediate will have to be taken now with very careful consideration of the reasons for doing so. If your client is against mediating make sure to be curious about their reasons - by doing so you can learn a lot about their case that you might otherwise have missed.

Actions to take now

The consultation closed on 28th May 2024 and the process will no doubt be affected by the July general election so it is difficult to say if and when the changes will come in to force. In the meantime review the advice you are giving your clients about alternative dispute resolution and consider if it needs updating in the light of Churchill and these potential changes.

Conclusions

It is now beyond doubt that the courts have the power to order mediation or other forms of alternative dispute resolution and in the future may have a duty to consider doing so routinely. Subscribe to my newsletter to keep up to date on this and other developments.

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