Now, in one of the most anticipated cases of the year, the Court of Appeal has handed down judgment in Churchill v Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416 on the issue of whether a court can order parties to engage in ADR. The case had attracted seven intervening parties including The Law Society, The Bar Council and The Civil Mediation Council and involved the court considering its previous decision in Halsey v. Milton Keynes General NHS Trust [2004] EWCA Civ 576, which had decided that the courts had no such power.

In a unanimous decision, the Court of Appeal ruled that courts can order parties to engage in ADR provided that it does not restrict their ability to proceed to a judicial hearing and that the order is "proportionate". The lead judgment was delivered by the Master of the Rolls, Sir Geoffrey Vos, who said "The court can lawfully stay proceedings for, or order, the parties to engage in a non-court-based dispute resolution process provided that the order made does not impair the very essence of the claimant’s right to proceed to a judicial hearing, and is proportionate to achieving the legitimate aim of settling the dispute fairly, quickly and at reasonable cost.”

The term "non-court-based dispute resolution process" is not defined and could potentially encompass a wide range of processes, including round-table meetings, non-binding expert determination and mediation, and there is no indication whether the courts will be looking to make an order in broad terms, leaving it for the parties to determine the method, or whether the order will be in prescriptive terms with a particular method specified.

Another issue is how the courts will respond to any failure by a party to properly engage with the process and, indeed, what degree of engagement will be expected. A failure to engage in a manner that the court considers appropriate is likely to result in adverse costs consequences and it is to be expected that arguments will arise, and which the courts will have to determine, as to whether parties have adequately engaged.

While it remains to be seen how this decision is applied in practice, it is not hard to see the attractiveness to the courts of staying matters and requiring parties to engage in ADR when delays in the civil litigation process and the pressures on the court service are increasing. In this regard, it is worth noting that the Justice Committee has begun an inquiry into County Court work, following what Chair Sir Bob Neill has described as "long-standing concerns" over its resourcing and capacity.

In cases where the parties are ordered to engage in ADR there will be costs implications. What the effect will be will depend on a number of factors, not least the stage of the litigation at which it is ordered, the extent to which the parties are in dispute that such an order is appropriate and whether the result is settlement of the case.