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On 24 January the Lord Chief Justice and the Vice Chancellor handed down a practice direction "Case management in civil litigation" applying to all lists in the Queen's Bench and Chancery Divisions.
To anyone who has run a recent case in the Commercial Court the direction's terms will be familiar. The first nine paragraphs are taken from a direction made by Justice Hobhouse in March 1990.
However, it is nevertheless a significant development for two reasons. First, it is evidence of the increasing trend towards an interventionist role on the part of judges in the management of litigation. Second, for the first time lawyers are specifically required to consider the use of alternative dispute resolution and to certify to the court they have done so no later than two months before the hearing.
No guidance is given as to what form of ADR might be considered. But, reference is made to a practice statement issued by Justice Cresswell in December 1993 designed to convey to practitioners the wish of judges in the Commercial Court to encourage them towards ADR.
I firmly believe that in appropriate circumstances mediation offers the parties a valuable opportunity to resolve conflict by agreement and so avoid the cost uncertainty and delay inherent in the further pursuit of litigation.
I have acted as mediator in a number of disputes, all but one of which have been settled on the day to the considerable satisfaction of the parties. I and my colleagues are now using mediation to resolve a growing number of substantial matters both pre and post the issue of proceedings.
This initiative from the judges is to be welcomed since it will cause those who may not have considered ADR to do so and it will also help to make redundant the objection to ADR, that to suggest it is a sign of weakness.
Andrew Paton is litigation partner at Pinsent & Co.