English High Court flexes its pro-mediation powers in commercial disputes

In late 2023, we reported that in a landmark judgment the Court of Appeal had confirmed that the English Courts can order parties to attempt mediation to resolve their dispute before proceeding via court. We can now update you on the first reported High Court decision exercising those powers, in a way more wide-ranging than before.

Recap of Churchill -v- Merthyr Tydfill CBC

In Churchill, the Court of Appeal decided that English civil courts have power to order unwilling parties to engage in some form of alternative dispute resolution (“ADR”) before their case could proceed in court. In that case, the alternative was mediation. This overturned some 20 years of orthodoxy that English Courts could not order unwilling parties to mediate, as this would “impose an unacceptable obstruction on their right of access to the court”.  

Following this judgment, on 1 October 2024 the Civil Procedure Rules (“CPR”) were amended to make this power explicit. A new strand to include promoting or using ADR was added to the Courts’ Overriding Objective (CPR 1.1); the Courts’ powers to manage cases was expanded to include “ordering or encouraging the parties to use” ADR (CPR 1.4(e)); and when giving directions the Court must decide whether to exercise that new case management power to order or encourage ADR (CPR 29.2(1A)). There is no time restriction – these powers can be exercised at any time during a case.

In DKH Retail Limited & Others -v- City Football…