It's good to talk — so is ADR now mandatory?

The evolution of the Courts' power to mandate alternative dispute resolution ("ADR") in English civil litigation reflects a growing recognition of ADR's role in achieving the overriding objective: to deal with cases justly and at proportionate cost.

Three cases mark the major touchpoints in this journey: Halsey v Milton Keynes NHS Trust [2004] EWCA Civ 576, Churchill v Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416, and DKH Retail Ltd v City Football Group Ltd [2024] EWHC 3231 (Ch). While Halsey set a restrictive tone by rejecting compulsory ADR, the recent decisions in Churchill and DKH Retail reflect a significant evolution in the Courts' approach, particularly court-ordered mediation.

In Halsey, the Court of Appeal held that Courts could not compel parties to engage in mediation. Dyson LJ stated that to do so would amount to an unacceptable infringement on the right of access to the Court under Article 6 of the European Convention on Human Rights. While parties should be encouraged to use ADR, they should engage only voluntarily; a refusal to mediate could give rise to adverse costs awards, but did not entitle a Court to coerce an unwilling party. That status quo remained untouched for almost twenty years.

In Churchill v Merthyr Tydfil, the claimant brought a nuisance claim against the local authority for Japanese knotweed encroaching onto his land. The Court of Appeal re-evaluated Halsey and held that the relevant comments on Article 6 were obiter and not binding; that Courts can lawfully stay proceedings or order parties to engage in ADR provided this does not deny access to justice and is proportionate; and that there is no inherent incompatibility between mandatory ADR and Article 6, so long as access to a judicial determination remains ultimately available.

Although the Court refused the request for a stay on practical and timing grounds, the significance of the decision lies in the principle it established: ADR can be made compulsory — even in the face of a party's objections. The Court adopted an evaluative approach, assessing the nature of the dispute, the parties' behaviour, the type of ADR proposed, and proportionality on a case-by-case basis.

Following Churchill, the Civil Procedure Rules were updated. As of October 2024, CPR Part 1 and Part 3 were amended to clarify the Courts' powers to encourage, facilitate, or order ADR, including in the absence of a party's consent. CPR 1.1 now explicitly includes dealing with cases in ways that "encourage and facilitate the use of ADR", and CPR 3.1(2)(m) confirms that Courts can order the parties to participate in ADR.

In DKH Retail, the High Court considered whether the words "Super" and "Dry" used on Manchester City's kit infringed the "Superdry" mark. At a pre-trial review the claimant sought court-ordered mediation. Despite the defendant's objection — citing entrenched positions, costs already incurred and a low likelihood of resolution — Mr Justice Miles, relying on Churchill and the amended CPR, ordered a "short and focused" mediation over the Christmas period. The case settled before trial.

The trajectory from Halsey to Churchill to DKH Retail demonstrates a clear transformation in the English Courts' relationship with ADR. Where once the emphasis lay on voluntariness, ADR is no longer merely optional: it now sits at the core of civil procedure under contemporary case management.