Bridging the gap between alternative dispute resolution and robust adverse costs orders

This article investigates and seeks to shed light upon an area which has not received attention in the current literature: the discrepancy which exists between judicial endorsement of ADR and the failure of the courts to translate or reflect that endorsement through making robust costs orders in the form of POs. It will be argued that this discrepancy has occurred as a consequence of the orthodox yet contradictory understanding among the senior judiciary that ADR, in particular mediation, is not mandatory within the English civil justice system. In this regard the author will seek to provide an alternative perspective of the Court of Appeal’s decision in Halsey v Milton Keynes General NHS Trust by considering the effect it has had on the specific issue of the types of adverse costs orders which the courts make and the impact the decision has had upon subsequent judicial reluctance in making POs. It will be argued that the courts should be more willing to make POs to fulfil two policy objectives. The first is to achieve fairness by reimbursing the unsuccessful party for costs it has had to incur which could have been avoided but for the successful party’s failure to engage in ADR or, at the very least, for failing to engage in ADR which would have had the benefit of narrowing the issues between the parties and allowed the parties to gain a better understanding of the strengths and weaknesses of their arguments in the event that the parties have to revert to the court process. The second objective is to reinforce the policy of requiring parties to seriously consider ADR and, as envisaged by Lord Woolf, preserve the court process as a last resort.