In litigation it can often be beneficial to both parties to attempt to resolve the matter without the need to go to Court. In the appropriate case this can save both time and money. Negotiation is the simplest method. Alternative Dispute Resolution (ADR) includes mediation or conciliation and is another method of resolving a dispute, which is gaining in popularity.
Traditionally ADR is seen as a voluntary process. In the right circumstances and with the will of both parties it can be a useful cost and time saving tool. However ADR is not always appropriate and a party has a Constitutional right of access to justice in public. A public hearing can provide vindication for a party and (in particular in medical negligence) can ensure that errors are highlighted in the public domain, in the hope that they will not be repeated.
What if one party objects to using ADR? Can a party refuse to engage in the process?
In all types of litigation, the Court Rules in Ireland permit the Courts to order that proceedings be adjourned whilst an attempt be made to resolve proceedings (or a specific issue in a set of proceedings) using ADR (Order 56A rule 2(1) RSC).
If one party unreasonably refuses to participate in the ADR process, then that party runs the risk that ultimately they may not obtain the full extent of their costs, regardless of whether they win or lose (Order 99 rule 1(b) RSC).
The law in relation to personal injuries cases goes further. Section 15 of the Civil Liability and Courts Act 2004, allows the Court to compel the parties engage in ADR.
Recent caselaw has tested these rules.
The case of Ryan v Walls Construction Limited was a personal injuries case regarding liability of an employer for injuries to an employee at work. In this case, Mr. Justice Kelly stressed that the key to an effective ADR process is that they are entered into “voluntarily”. He stressed that an ADR process has “poorer chances of success” if not entered into voluntarily.
In the case of Atlantic Shellfish Limited v Cork County Council, one party (Cork County Council) refused to engage in ADR. This was not a personal injuries case and concerned a claim for damages in tort law arising from alleged losses to the Plaintiffs’ oyster fisheries business from alleged untreated sewage in the Defendant’s harbour. The High Court refused to direct that the parties engage and this was upheld on appeal by the Court of Appeal. The Court of Appeal were clear that under the Rules the Court had a discretion to direct the parties to engage in ADR but would only do so where “appropriate” to do so. The Court highlighted a number of factors which the Court should consider when directing parties to ADR, including the extent of which the ADR was capable of resolving or narrowing the issues in dispute. In this instance the Court held that the nature of the issues between the parties made it unsuitable for ADR and refused to order that the parties engage in ADR.
A further example of the use of ADR is the large number of proceedings taken in Ireland against DePuy hip manufacturing company in relation to their recalled hip devices. Cantillons Solicitors represent a large number of people who received these hip devices. A large volume of these cases, estimated to be over 1000, are yet to be resolved. This is a unique scenario and due to the pressure this large number of cases is likely to put on Court time and resources, Mr. Justice Cross ordered that “innovative solutions” be found. Cantillons Solicitors (along with other Solicitors representing patients) successfully negotiated the terms of this process to ensure that the ADR process for these cases is as fair and independent as possible. Cantillons Solicitors continue to assist a number of clients with bringing their claim through the ADR process. If the ADR process is not successful then these clients will be entitled to bring their proceedings to Court in the usual manner.
The Courts recognise that ADR is a useful tool in resolving disputes and saving court time. It seems that the Courts will encourage parties to try ADR whenever possible, but the Courts recognise the inherently voluntary nature of ADR and for the most part the Courts are unlikely to force a party to engage in ADR.
However a party refusing to engage in ADR should be mindful that should they refuse (without reasonable grounds) to engage there could be adverse consequences when it come to obtaining their costs.
We at Cantillons Solicitors have experience at advising clients in all types of litigation whether the ADR process is suitable for their case and if so we have experience of guiding clients successfully through the process.
Contact us at Cantillons Solicitors at +353 (0)21 -4275673 or firstname.lastname@example.org if you would like more information.
* In contentious business, a solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement.