Consultation Paper on Alternative Dispute Resolution - Law Reform ...

Whilst the Court of Appeal did not single out either side for criticism in failing to
consider ADR, it expressed its concern that both parties had focused on the
past, rather than looking to the future. Lord Woolf CJ commented that:
―Without the need for the vast costs which must have been incurred
in this case already being incurred, the parties should have been able
to come to a sensible conclusion as to how to dispose of the issues
which divided them. If they could not do this without help, then an
independent mediator should have been recruited to assist. That
would have been a far cheaper course to adopt. Today sufficient
should be known about alternative dispute resolution to make the
failure to adopt it, in particular when public money is involved,
indefensible‖
11.43 The important aspect of Lord Woolf‘s judgment stems from his strong
emphasis that parties and their advisers should consider ADR. In particular,
Lord Woolf addressed come comments to legal advisers:
―This case will have served some purpose if it makes clear that the
lawyers acting on both sides of a dispute of this sort are under a
heavy obligation to resort to litigation only if it is really unavoidable.‖ 43
11.44 In Dunnett v Railtrack plc 44 the Court of Appeal decided not to award
costs against the unsuccessful claimant because the defendant had refused to
consider arbitration or mediation in the face of a recommendation to do so by
the court. The case represented ―a substantial step in the enforced promotion of
ADR by the courts and has raised some concern for practitioners and litigants
alike in England and Wales about the costs implications flowing from the failure
to partake in some form of ADR.‖ 45
11.45 The claimant had made a claim for damages against the defendant
after some of her horses had been allowed to escape from her property onto the
railway where they were killed. The claimant‘s claim was dismissed at trial and
she appealed the decision. When the court gave leave to appeal, the judge
advised her to explore mediation. The claimant had actually proposed mediation
to the defendant before the appeal came on for hearing but the defendant had
turned down the proposal. The claimant was unsuccessful again on appeal but
the Court of Appeal declined to award costs to the successful respondent.
43 Lord Woolf at para. 27.
44 [2002] EWCA Civ 2002.
45 Carey ―Court Reforms, ADR and Costs Consequences — Lessons for Ireland?‖
(2002) 20 ILT 246.
338