04 Oct 2019
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 (Art 6, European Convention on Human Rights).
Pauline Lomax v Stuart Lomax [2019] 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 an ENE. So far so familiar. Under Civil Procedure Rule (CPR) 3.1 (2) (m) an application was made for the Court to order an ENE to take place; could the Court do so absent one party’s consent? This issue was thrashed out in the High Court sitting in Leeds and Manchester during June and July 2018. Judgement was handed down on 20 May 2019.
In between the July hearing and the release of the judgment, the Final Report in the Civil Justice Council’s Review of ADR was published, in November 2018. 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))
and in Recommendation 21:
“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 the Learned Judge at first instance wrestled long and hard about whether the parties could be compelled to undertake an ENE the Court of Appeal found that parties could be compelled. The CA seemed to have recommendation 21 in mind when finding that, in effect, the principles in Halsey were now out of date: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.”(para 27 of the Court of Appeal judgment)
The most interesting thing about Lomax, however, is 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. At a time when the Court of Appeal lacks judges the delay in hearing appeals has reached 730 days. Yet in Lomax the Court of Appeal gave judgment (extempore) in only 77 days after the case was heard by Parker, J. A senior civil servant at the Ministry of Justice observed to the author 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, Nigeria and other jurisdictions have introduced compulsory forms of ADR with great success in terms of bringing swift justice for the citizen. Scotland recently saw 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 English and Welsh Government’s new Money Claims Online Portal. Indeed the Court of Appeal in Lomax held, per Moylan, LJ:
“…in my view an ENE hearing is not an obstruction to or constraint on a party's access to the court.”
giving the unanimous judgment of the Court.
The decision in Lomax has already stimulated much debate amongst practitioners and commercial litigators. Suggestions that, for example, Lomax does not apply in construction litigation rely on the words of a Court Guide used in the Technology and Construction Court requiring consent. The author respectfully disagrees with such views and refers practitioners to the Court of Appeal’s judgment at paragraph 28:
“As for the Court Guides relied on by Mr Entwistle, whilst they can assist in particular where there is ambiguity, as stated in the White Book at 12-44, p.2898:
"It is clear that the effect of rules and directions cannot be suspended or dis-applied by what may be said in Court Guides."
Does Lomax and the Civil Justice Council’s ADR Final Report represent a Constantinian shift toward more ADR? If the ADR Final Report and the Court of Appeal decision in Lomax 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 on other jurisdictions in England and Wales. If strategies are not in place now for training fee-earners and managing client expectations about ADR now is the time to ensure fee-earners and clients are aware: ADR is an irresistible part of their litigation journey.
Tony N Guise
Tony is the Director of DisputesEfiling.com Limited the provider of online ADR platforms and a Past President of the London Solicitors Litigation Association.