There has been a very interesting development coming out of the civil courts in relation to parties’ litigation and alternative dispute resolution (“ADR”). The case, if you want to google it, is James Churchill v Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416.
At its essence, there was a civil dispute that was ongoing between two parties through the civil courts. The parties had reached a certain point in proceedings and were asking the court to go further and have a full hearing and trial of the matter. As you can imagine, this would have been both costly and time consuming.
It was at this point that the court took a very interesting stand. It decided it could lawfully stall civil litigation proceedings in court and insist that the parties proceed via private ADR. It determined that there were sufficient grounds for the parties to deal with their matter privately rather than at the public expense through the court system.
This is an interesting development as the deeply overburdened and chronically underfunded court system has been struggling for some time to deal with its increasing workload. It is not the case that the number of cases before the court has necessarily increased; rather, what is happened is that the courts have been so significantly underfunded by the current and more recent Governments, that it simply does not have the Judges or court staff to deal with the normal volume of applications before it. This is leading to court processes being significantly delayed and, in the family court, a potential lack of judicial availability, or indeed, expertise if a hearing has been listed.
On a public policy basis there should be access to justice for all. The court continues to accept that access to justice should not be fettered. However, dire underfunding means the courts are now taking a more robust stand and have moved from, in the civil courts at least, suggesting the parties take ADR to enforcing it.
Whilst this was a civil jurisdiction case, I think we can view it as trend setting. It is not too far a leap to see the overburdened matrimonial courts taking exactly the same approach. Indeed, in financial matters, the court will have before it significant understanding to the parties’ resources to know whether or not ADR is affordable.
I think this case is the first of many and I would not be at all surprised for a situation to develop if the parties had the means to afford to “go private” the court forces them to.
This is not necessarily a bad thing at all. There are many benefits to ADR and “going private”.
The resources available and skills of a good family law mediator means that most parties, without even entering a court room (or a private court room) can resolve most, if not all, of the matters outstanding between them. Should mediation fail, there is the often used (at least by this firm) early neutral evaluation (or Private FDR) where parties, with the help of a private Judge, try and negotiate a settlement with the aid of that Judge.
There is also, in family law, the collaborative law process that suits individuals who can speak with each other but want the comfort of dealing with matters aided by a solicitor in a 4-way meeting process.
Finally, if there nonetheless remains issues between the parties, there is arbitration. This is where the arbitrator (a private Judge) hears evidence much like a Final Hearing before the court and, much like a Judge in court, produces a final determination which is binding on the parties.
Whilst the private process does have a cost being, generally, the hire of a private Judge, or the number of 4 way meetings in collaborative law – there are real benefits to that. It means both parties have joined in the selection of that Judge so are therefore, involved in the decision making process in a much more realistic way than the random lottery that is the selection of a Judge in the court system.
It is also the case that your private Judge is, by their selection, automatically an expert in the field of law in which you need them to be. It is very common, in the courts at the moment, for matters to land before Judges who simply do not have the expertise, or indeed any expertise, in the particular matter that they need to.
It also ends up being a costs savings because the private Judge spends a great deal of time preparing for any hearing, it means that time is saved in private court. What would be a two-day hearing in front of a court based Judge would be a one-day hearing before a private Judge.
The greatest saving is time and stress. “Going private” means that you can fit the dates to your diary and you can have final determination as quickly as you need it. There is no waiting months for a court hearing (my current record is 18 months). You simply ‘get on and do’ when you are ready. The private process also means that you are generally in nicer venues and the process is more relaxed. Finally, the level of your involvement and ability to make selections means that you have much more engagement in the determination of your own life.
Here at Rayden Solicitors we fully support all ADR options. We offer mediators (Partner Nazia Rashid, Legal Director Che Meakins and Associate Solicitor Claire Howard) who would be more than skilled in helping you resolve issues between you. We also have excellent trained collaborative lawyers (Partner Paula Butterworth and Legal Directors Lehna Gardiner and Marc Etherington) who can help you work through the collaborative process together. We have both a financial arbitrator (me, Partner Julian Bremner) and a children’s law arbitrator (Partner Emily Watson) who can help you with determinations in your case large or small.
So whilst this is the first case that will pave the way for the courts shunting the cases before it into the private arena – I suspect it will not be the last.
This is not to be feared and actually, could have a real benefit to you. Please do not hesitate to contact us to discuss alternative dispute resolution further.
