Page 69 - Solving Housing Disputes

Alternative dispute resolution and pre-action process

Introduction

3.25 ADR is “a collective description of methods of resolving disputes otherwise than
through the normal trial process”. 174 The Woolf Report recommended ADR have
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a fundamental role in civil justice under the new Civil Procedure Rules (CPR),
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under which courts are required to further the overriding objective by “actively
managing” cases, including by “encouraging the parties to use an alternative
dispute resolution procedure.” Similarly, the FTT (PC) rules provide that the
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tribunal should, where appropriate, bring to the attention of the parties the
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availability of any appropriate alternative procedure to resolve the dispute.

3.26 ADR offers widely acknowledged benefits to parties, the justice system and
society: resolving disputes quickly and at far lower cost to litigation; maintaining
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relationships through a non-adversarial dispute resolution process; and

174 CPR Glossary, available at http://www.justice.gov.uk/courts/procedure-rules/civil/glossary
Traditionally ADR is conceived of as “a voluntary process in which a neutral facilitator helps the parties
reach agreement”, Genn, ‘Court-based ADR initiatives for non-family civil disputes: the Commercial
Court and Court of Appeal’, (Lord Chancellors Department, 2002) p. 1 available at
https://www.ucl.ac.uk/judicial-institute/sites/judicial-institute/files/court-
based_adr_initiatives_for_non-family_civil_disputes.pdf

175 Lord Woolf wrote that “[in future] …parties should: (i) Whenever it is reasonable for them to do so
settle their disputes before resorting to the courts; (ii) Where it is not possible to resolve a dispute or an
issue prior to proceedings, then they should do so at as early a stage in the proceedings as is possible.
Where there exists an appropriate alternative dispute resolution mechanism which is capable of resolving
a dispute more economically and efficiently than court proceedings, then the parties should be
encouraged not to commence or pursue proceedings court until after they have made use of that
mechanism,” Lord Wolf, Access to Justice, Interim Report (Lord Chancellor’s Department, June 1995)
Chapter 4.7.

176 The overriding objective is to enable the court “to deal with cases justly and at proportionate cost”,
CPR 1.1.

177 CPR 1.4(2)(e).

178 If the parties’ consent and where the procedure is compatible with the overriding objective, the
tribunal should facilitate the use of the procedure. Tribunal Procedure (First-tier Tribunal) (Property
Chamber) Rules 2013 rule 4(1).

179 Harris note 49 above p. 31.

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