BRIDGING THE GAP BETWEEN ALTERNATIVE DISPUTE RESOLUTION AND ROBUST ADVERSE COSTS ORDERS
BRIDGING THE GAP BETWEEN ALTERNATIVE DISPUTE RESOLUTION AND ROBUST ADVERSE COSTS ORDERS

Summary/Abstract: This article investigates and seeks to shed light upon an area which has not received attention in the current literature: the discrepancy which exists in within the English civil justice system between judicial endorsement of ADR and the failure of the courts to translate or reflect that endorsement through making robust costs orders. It will be argued that the courts should be more willing to order a successful party in litigation, but one who has unreasonably refused to engage in ADR, to pay some or all of the unsuccessful party’s costs and this should be done to fulfill two policy objectives. The first is to achieve fairness by reimbursing the unsuccessful party for costs it has had to incur which could have been avoided but for the successful party’s failure to engage in ADR or, at the very least, for failing to engage in ADR which would have had the benefit of narrowing the issues between the parties and allowed the parties to gain a better understanding of the strengths and weaknesses of their arguments in the event that the parties have to revert to the court process. The second objective is to reinforce the policy of requiring parties to seriously consider ADR and, as envisaged by Lord Woolf, preserve the court process as a last resort. pp. 98–126

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