Alternative Dispute Resolution (ADR) is a fundamental aspect of the Civil Procedure Rules (CPR) which are the rules that govern the process of Civil Litigation. ADR is a way of settling a dispute other than having a judge decide the claim at trial after a lengthy dispute. ADR includes various methods of settling a dispute such as mediation, arbitration, part 36 offers, early neutral evaluation, without prejudice offers and an ombudsman.

CPR 1.1. contains the overriding objective which states that cases must be dealt with fairly and at a proportionate cost which would include the case being dealt with at a proportionate cost to the sum in dispute. If ADR is attempted early on in proceedings and is successful, it can save the parties the time and cost of a lengthy litigation dispute. Even at the end of a lengthy dispute that does result in a trial, the outcome of the trial cannot be promised. A claim going through the trial process has many stages that must be completed including but not limited to disclosure, exchanging witness statements, cost budgeting, expert instruction and trial preparation. All of this legal work will require payments on account throughout the process so even if a party is successful at trial and gains a cost award against the other party, expense will be incurred in the interim leading up to trial.

There is then also of course the chance that a party may not be successful at trial due to various reasons. The normal rule is that the successful party will be able to retrieve their costs from the unsuccessful party, although it is not possible to recover every penny a party has spent on litigation leading up to trial. However, a Judge can fray from this rule if they deem that the successful party has not been cooperative throughout the process and has unreasonably refused an offer of ADR. This means that if a party is successful in their claim but it is found that they unreasonably refused an invitation to enter into ADR, this may result in an adverse costs order. Mediation is a form of ADR in which parties are entered into a confidential meeting outside of the court process with a mediator who will communicate the offers of settlement between the parties.

Mediation has a high success rate of settling disputes so that the need for trial can be vacated. The case of Halsey -v- Milton Keynes General NHS Trust (2004) highlighted that there can be costs consequences for unreasonably refusing mediation where a Judge finds that mediation could have reasonably settled the dispute.

The Courts do not look favourably on parties who “want their day in Court” and strongly encourages parties to consider a reasonable alternative. The penalties for parties who don’t engage in ADR can include that the unreasonable party may be ordered to pay the other party’s costs on an indemnity basis. This could mean that the refusing party would have to pay the other party’s costs even if they are not proportionate to the amount in dispute. The Court often order a “stay” of proceedings which essentially pauses proceedings whilst the parties attempt ADR and often include on their orders that the refusing party may have to lodge a witness statement explaining their refusal to the Court.

It is well known within the profession that the Courts are extremely busy which causes significant delay in proceedings and countless adjourned trials, meaning that the relief that comes with a settled dispute is too often delayed for parties. The amendment No.3 to the Civil Procedure Rules comes into effect on 1st October 2024 which will include a stronger focus on Alternative Dispute Resolution which will take some pressure of the Courts.

For further advice and assistance please contact our Litigation and Dispute Resolution team on  01604 344562 / 01908 916096 or email info@franklins-sols.co.uk.

Celebrities have always had to navigate between the repercussions of being famous and their right to privacy. In particular, it is no mystery that celebrities often have disputes with newspapers in respect of articles they have published, or how they have obtained information.

British actor Hugh Grant has recently been involved in a privacy case in which he accused the publisher of The Sun, News Group Newspapers (NGN), of unlawful information gathering.

The actor has accused the publisher of various offences, such as phone hacking, landline tapping, bugging his phone and burgling his flat and office. His case was due to be heard next year at London’s High Court in January 2025 alongside Prince Harry and others. The actor, along with many others, were suing NGN for alleged widespread unlawful information gathering.

Hugh Grant has always been an important campaigner on press reform since the phone-hacking scandal emerged over a decade ago. Although the actor wanted to see this case go through to court, he was advised by his lawyers to accept the publisher’s settlement offer. This case was therefore settled “without admission of liability” and for an “enormous amount of money”.

The actor stated that he “would love to see all the allegations that they deny tested in court” and was ready to go all the way through to the hearing next year. Nevertheless, he was advised that he risked being liable for £10 million in legal costs if the case proceeded to trial.

The rules of civil litigation set out that the losing party of a case usually pays the winner’s costs. However, this could all change when it comes to settlement as if the damages awarded to a successful claimant are less than the settlement amount offered by the defendant, the claimant may have to pay the legal costs for all sides after the offer was made. The actor was therefore advised that, should this case go to trial, he would risk being liable for millions.

The European Convention on Human Rights provides for a right to privacy under Article 8, which undeniably needs to be balanced against the right to freedom of expression under Article 10 of the Convention. These rights are constantly argued and relied on in cases between celebrities and newspapers, especially since there are no statues or case law covering these issues in the UK. It is very important for individuals (and even businesses) to take independent legal advice on Intellectual Property Rights.

For further advice and assistance please contact our Commercial Solicitors on 01604 828282 / 01908 660966 or email info@franklins-sols.co.uk

The courts encourage methods chosen to resolve a dispute before it reaches court which are collectively referred to as Alternative Dispute Resolution (ADR).

One option to parties to settle a claim before going to court is a ‘Part 36 offer’. This is a form of offer used to settle all or part of a dispute between parties in civil litigation, which is governed by Part 36 of the Civil Procedure Rules (CPR).

The Part 36 offer must be put in writing and is required to state whether the offer is to settle either all or only part of the claim. A breakdown of how the settlement figure being offered has been reached is not a necessary requirement to be included in the offer.

If the offeror makes a Part 36 offer that is not accepted and the offeree fails to obtain a more advantageous judgment when the case reaches trial, then generally the offeror will be ordered to pay the offeree’s costs from the date of expiry of the offer. Therefore, if the offer is not accepted, the receiving party of the offer has a significant risk as to costs and interest.

It is important for the Part 36 offer to be clear as to whether it relates to the whole of or part of the claim. If the latter then it needs to be clear as to which part of the claim it relates to so that there is no opportunity for the offeree to be confused. The offeree may require clarification regarding the matter rather than just accepting or rejecting it. If the offer is particularly badly drafted then the offeree may send a “without prejudice save as to costs” or “Calderbank” letter to advise that no offeree could reasonably be expected to accept such a badly drafted offer and make a counter-offer. This puts the pressure back on the offeror to reach an agreement based on the offeree’s clearer terms. The offeree could not rely on the ambiguity of the offer if they did not reply within 7 days of the offer being made to advise that it wasn’t clear enough to be accepted. There is nothing to state within Part 36 that the offeror must provide the requested clarification, however the offeree can request that they do so under CPR 36.8(2), although a refusal to provide clarification will be a factor that the court considers when making the usual costs order.

If the offer is not accepted, it will need to be frequently reviewed to assess whether it should remain on the table or whether it should be revised or withdrawn. Unless it is a time limited offer, the offeree can accept the offer at any time prior to trial unless a notice of withdrawal has been served on the offeree. It is important to withdraw the offer as the case progresses if the offeror’s circumstances change. If subsequent offers are made and the original offer has not been properly withdrawn then the offeree is entitled to accept the original offer regardless of the further offers being made.

Once a Part 36 offer has been accepted, it cannot be withdrawn or revised (pursuant to CPR36.9(1)). This is with the exception of the following circumstances; if the claim is by or against a protected party, then the court has to approve the claim even if it has been accepted by the protected party. In the event that the offer had an obvious mistake in it and the offeree appreciated this at the time of the acceptance, this can invalidate the offer.

Time-limited Part 36 offers came into force under the revised Part 36 on 6th April 2015. The advantage of a time-limited offer is that it puts the offeree under pressure to accept the offer but the disadvantage is that if not accepted within the expiry period, then the offer will be automatically withdrawn and will not have the same Part 36 consequences on the offeree. The court will “have regard” to the offer when assessing the costs in the matter, but no more than that.

For further advice and assistance please contact our Litigation and Dispute Resolution team on 01604 828282 / 01908 660966 or email info@franklins-sols.co.uk