The handing down of today’s judgment from the Court of Appeal will provide some long awaited answers for Social Landlords, and parties who are engaged in the litigation process about the use of what is loosely referred to as Alternative Dispute Resolution (ADR), or as the Court preferred to call it a ‘non-court-based dispute resolution’.

The most senior civil judge gave the leading judgment which was unanimously agreed with by the other two judges hearing the appeal. 

The court decided that in principle, civil courts, when hearing issued claims, do have the power to control their own process and that may include staying or delaying any existing proceedings whilst any other settlement process is undertaken. 

Sir Geoffrey Vos (Master of the Rolls) even went so far as to say that “the court can obviously delay resolution of a claim to allow the parties to negotiate whether they all want to or not”. He also noted that experience has shown that it is extremely beneficial for parties to be able to settle their differences cheaply and quickly even for parties that perhaps were initially resistant to use mediation or other non-court-based dispute resolution.

The court then gave further guidance on what principles should be considered in deciding whether to exercise the above discretion. The court was clear it both could not nor indeed should not lay down fixed principles as to what will be relevant factors in determining the questions a court will ask itself. Further, it noted that a checklist or scoresheet would not be desirable for a judge to operate. However, it rather accepted that judges hearing issued claims would be well qualified to decide whether a particular form of non-court-based dispute resolution is likely to be appropriate to achieve the important objective of bringing about a fair, speedy and cost-effective solution to any civil dispute. The court also considered that a stay should only really be granted if the proposed process did not impair a claimant’s right to proceed to a judicial hearing and is also proportionate in achieving the legitimate aim of setting claims fairly, quickly and at reasonable cost.

The upshot of this for Social Landlords is that internal complaints procedures can potentially be used as a form of dispute resolution as well as other third party options, such as mediation. However, this does raise questions on whether claimants can request the assistance of a solicitor or other legal representation in the process and also whether there is in place a mechanism for costs to be paid for this, especially if the process is expected to deal with some complex and nuanced factual or legal issues to deal with the calculation of damages etc.

Either way now would be a good time to revisit procedures or policies and seek advice on potentially strengthening them to be offered and subsequently used by claimants as a way of reducing costs and also persuading courts to stay issued proceedings.

How Capsticks can help

We provide housing management advice to over 200 social housing providers across the country, offering our clients specialist legal advice from people who understand the issues. 

If you have any queries around what's discussed in this article, and the impact on your organisation, please speak to Paul Lloyd.