Without prejudice rule: High Court emphasises narrow scope of exceptions
Herbert Smith Freehills » ADR
by Jan O'Neill
20h ago
A recent High Court decision is of interest for its discussion of several of the recognised exceptions to the “without prejudice” (WP) protection which usually applies to settlement negotiations: Ocean on Land Technology (UK) Ltd v Land [2024] EWHC 396 (IPEC). The decision highlights that: the burden is on the party seeking to establish that an exception to the WP rule applies; and establishing that an exception applies to some part of the WP negotiations will not necessarily mean that protection is lost for the whole of those negotiations. The decision also emphasises the narrow scope of ..read more
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High Court refuses to stay proceedings commenced in breach of valid ADR clause
Herbert Smith Freehills » ADR
by Jan O'Neill
2w ago
In a recent decision, the High Court held that a dispute resolution clause in a project agreement created a binding obligation on the parties to refer any disputes to an out-of-court adjudication process, as a pre-condition to commencing litigation. However, exercising its discretion, it refused to order a stay of proceedings that had been commenced in breach of the clause. Because the litigation involved other parties and wider issues regarding the project, the court considered that an adjudication involving only two parties would be of little utility and that a stay would unjustifiably disru ..read more
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Article published – UK compulsory mediation ruling still leaves courts leeway
Herbert Smith Freehills » ADR
by Litigation team
3M ago
The Court of Appeal’s landmark judgment in Churchill v Merthyr Tydfil County Borough Council, handed down in late November, established that the courts can order parties to mediate or engage in some other form of alternative dispute resolution (ADR), overturning what was thought to be a long-standing English law prohibition on courts compelling ADR. The decision is outlined here. Alexander Oddy, Natasha Johnson and Maura McIntosh have also published an article on Law360.com which looks at the decision and its implications for parties to commercial litigation ..read more
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Courts can compel parties to engage in ADR: Court of Appeal finds comments to the contrary in Halsey not binding
Herbert Smith Freehills » ADR
by Litigation team
4M ago
In a landmark decision handed down today, the Court of Appeal has held that the court can order the parties to engage in ADR, or stay the proceedings to enable them to engage in ADR, provided that the order does not impair the essence of the claimant’s right to a fair trial, and it is proportionate to achieving the legitimate aim of settling the dispute fairly, quickly and at reasonable cost: Churchill v Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416. The Court of Appeal’s decision does not, however, lay down fixed principles as to when such an order should be made. The court noted ..read more
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Correspondence about possibility of ADR was not “without prejudice” despite being marked as such
Herbert Smith Freehills » ADR
by Jan O'Neill
6M ago
The High Court has held that inter-solicitor correspondence about the possibility of engaging in ADR was not properly to be regarded as “without prejudice” (WP) despite being marked as such. The court could therefore have regard to it in considering the appropriate costs order following judgment: Jones v Tracey [2023] EWHC 2256 (Ch). The decision illustrates that the question of whether or not a communication benefits from WP protection depends on the true nature of the communication and how it would be understood by a reasonable recipient. While a marking of WP (or WP “save as to costs ..read more
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Pre-action protocols: Civil Justice Council recommends mandatory pre-action ADR but will consider a more flexible bespoke protocol for commercial cases
Herbert Smith Freehills » ADR
by Jan O'Neill
6M ago
In a recent report, a Civil Justice Council (CJC) working group has recommended substantial changes to the regime of pre-action protocols (PAPs) which parties are expected to follow before civil proceedings are commenced in the English courts. The thrust of the proposals is to give PAPs more “teeth” by: making their requirements mandatory and formalising their status under the Civil Procedure Rules – thereby expanding the courts’ powers to sanction parties for non-compliance, including by staying or even striking out proceedings extending the current obligations in the ‘default’ general PAP p ..read more
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New “non-consensual” ADR process in the Employment Tribunals adds to the momentum toward compulsory ADR
Herbert Smith Freehills » ADR
by Jan O'Neill
8M ago
A new procedure has been introduced in the Employment Tribunals of England and Wales allowing judges in complex claims to require the parties to participate in an ADR process. The process is akin to judicial Early Neutral Evaluation (ENE), in which a judge not involved in the case gives the parties a non-binding opinion as their prospects in the claim, with a view to encouraging settlement. Beyond its impact in employment disputes, this development is of wider interest in the context of the current hot topic of compulsory ADR in the civil justice system. It appears to add to the growing moment ..read more
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HSF’s Paulino Fajardo receives the Barakah Award for outstanding contribution to mediation
Herbert Smith Freehills » ADR
by Jan O'Neill
10M ago
Paulino Fajardo, Herbert Smith Freehills’ Head of Disputes for the EMEA region, has been awarded the prestigious Barakah Award (Europe category) 2023 for outstanding contribution to the field of mediation. A partner in our Madrid office, Paulino is dual qualified in England and Spain and is a leading practitioner in international litigation and arbitration, particularly in the insurance sector.  The award recognises his commitment to promoting mediation of commercial disputes. Since training as a mediator with CEDR in 2007, he has become a pioneer in commercial mediation in Spain. His exp ..read more
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The UK has signed the Singapore Convention
Herbert Smith Freehills » ADR
by Jan O'Neill
11M ago
Just over two months after the announcement that the UK would join the Singapore Convention, the UK government has now taken the first step by signing the Convention. The signing in New York happened with little fanfare but is a welcome confirmation of the government’s commitment. The domestic implementing legislation and court rules now need to be put in place before the UK ratifies the Convention.  It will come into force in the UK six months after ratification, which is most likely to be in late 2023 or 2024.  For our analysis of the Convention’s legal impact and some of the issue ..read more
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CEDR Mediation Audit results: The post-pandemic state of civil mediation
Herbert Smith Freehills » ADR
by Jan O'Neill
11M ago
The Centre for Effective Dispute Resolution (CEDR) has released the results of its latest Mediation Audit, the first since the start of the pandemic. For the past 20 years, CEDR’s biennial surveys of mediators have provided a snapshot of civil and commercial mediation in the UK, identifying key trends and developments.  The latest survey received 328 responses, representing approximately 50% of the individual mediator membership of the Civil Mediation Council.  (The report also includes for comparison some results of a parallel survey of lawyer attitudes to mediation). Interesting fi ..read more
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