Balancing act

There are inevitably points in the civil justice system where tension arises between competing interests, whether this be administrative processes or in a clash of legal principles. One example, highlighted recently in the decision in CIP Properties (AIPT) Limited vs Galliford Try Infrastructure Limited and others [2014] EWHC 3546, concerned the tension between the need to administer cases as swiftly and cost-effectively as possible through the litigation process and the desire to allow the parties adequate opportunity to explore settlement through alternative dispute resolution (ADR). The question here was whether the court should allow a stay of the proceedings while the parties explored the possibility of mediation.

CIP concerns a claim by assignees in respect of alleged defects at a large development on the site of the former children’s hospital in Ladywood, Birmingham. CIP brought a claim for damages against the main contractor based principally on the actual/estimated costs of remedial works.  The contractor issued third party proceedings against the architects and certain of their subcontractors. The trial estimate is six weeks but may take longer.  Numerous experts have been called to give evidence.  In other words, a large, complex and expensive piece of litigation. 
Two issues came before the court at the case management conference (CMC) which the judge considered sufficiently important to make the subject of a separate judgment.  The second concerned the court’s powers to order filing and exchange of costs budgets and I will not deal with that issue here.

The trial date needs to be as soon as reasonably possible but not so soon that the parties have no time to explore settlement

The first issue concerned the proposal by the defendants that the court should order a four-month “window” in the timetable prior to disclosure to allow the parties to explore settlement by way of ADR (probably mediation).  This was opposed by the claimant on the basis that, as assignee, it would not have seen or been party to much of the contemporaneous documentation which it would need to see to understand the details of the claim and therefore it would be disadvantaged in any attempt to mediate prior to disclosure. 
The judge was very careful in his judgment to point out that the judges in the TCC set great store by ADR and that the TCC lists in London would be impossible to operate without the good work of mediators and others involved in the ADR process. Notwithstanding this, the fixing of the trial date, which takes place at the CMC, often then dictates the timetable itself and is one of the critical elements of any CMC.  The trial date needs to be as soon as reasonably possible in the circumstances of the particular matter in dispute but not so soon that the parties have no time to explore settlement.   

These competing interests are balanced by identifying a period between various stages of the litigation process, such as disclosure and exchange of witness statements, to allow the parties enough time to consider and engage in ADR.  How long this period will be will obviously depend on the length of the overall timetable.   

What the court will not do is to stay the whole of the proceedings to allow ADR to take place since, inevitably, the court proceedings end up being delayed by the period of the “window”.  Consequently, in the CIP case, the court declined to order the “window” requested by the defendants and instead built an appropriate period into the timetable itself. 

The decision represents a sensible and pragmatic approach to balancing the twin requirements of procedural fairness and encouragement to settle through ADR. You will be expected not only to proceed to trial as swiftly and cost-effectively as reasonably possible, but also to seek to resolve the case whenever the opportunity arises.  As we know from numerous decisions following on from Halsey vs Milton Keynes General NHS Trust [2004] EWCA Civ.576, the court considers that the vast majority of cases are capable of being mediated or resolved through ADR and will expect to see the parties actively engaging in at least one if not more attempts to mediate a settlement before trial is reached. Although CIP reflects what should be common practice anyway, it reinforces the need for the parties to litigation to be mindful at all times of the opportunity to settle and to take that opportunity while the timetable allows.

Simon Lewis is a partner in the construction and engineering team at Bond Dickinson