A report by a working group in the Civil Justice Council (England and Wales) has concluded that it is lawful to make alternative dispute resolution (ADR) compulsory in civil disputes. The report, published on July 12, concluded: “[I]t is compatible with Article 6 [of the European Convention on Human Rights] for a court or a set of procedural rules to require ADR.” The Civil Justice Council is an influential body that advises policymakers and the judiciary on court reforms.

A change of culture in civil disputes

The Chair of the working group, Lady Justice Asplin, commented: “More work is necessary in order to determine the types of claim and the situations in which compulsory (A)DR would be appropriate and most effective for all concerned, both in the present system and in relation to online justice. Our conclusions place another useful and powerful tool in the box. They also provide the opportunity to initiate a change of culture in relation to dispute resolution which will benefit all concerned.”

Sir Geoffrey Vos, the second most senior judge in England and Wales, added: “ADR should no longer be viewed as “alternative” but as an integral part of the dispute resolution process; that process should focus on “resolution” rather than “dispute”. This report opens the door to a significant shift towards earlier resolution.”

ADR in online justice is coming

Sir Vos also noted the technology project in the English courts. “[I]t is exciting to see the HMCTS reform project delivering online justice. All kinds of dispute resolution interventions will be embedded within that online process.”

Lord Justice Birss summarised the project in his speech titled ‘The online future of civil justice’ (April 2021). The plans include filing/managing all civil cases online; dealing with all pre-trial hearings and most trials via video conferencing; and integrating ADR into the court process. Birss LJ said these changes are expected in the next five years and urged intellectual property stakeholders to engage in the process. 

The civil procedure rules and court guides (e.g. Chancery Division, Patents Court and IPEC) already encourage the use of ADR. It remains to be seen when the rules will be updated to make ADR mandatory and whether all IP disputes will be covered. In the meantime, we may well see judicial activism in this area.

Users of the English courts should expect changes which are designed to reduce costs and time.

Read the Civil Justice Council's report here.