Chapter

Alternative Dispute Resolution, the Threat of Adverse Costs, and the Right of Access to Court

Shirley Shipman

in The Civil Procedure Rules Ten Years On

Published in print December 2009 | ISBN: 9780199576883
Published online March 2012 | e-ISBN: 9780191702228 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780199576883.003.0018
Alternative Dispute Resolution, the Threat of Adverse Costs, and the Right of Access to Court

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CPR r 1(4)(2)(e) requires the court to encourage potential litigants to use an alternative dispute resolution (ADR) procedure where appropriate. The court has adopted a number of means to encourage the use of ADR processes, ranging from education and publicity to more robust approaches such as criticism, court orders and, the ultimate weapon, the threat of an adverse costs award. This chapter considers whether CPR r 1(4)(2)(e) is compatible with the right of access to the court. It explores the possibility that the court's role in encouraging ADR, at least in relation to the use of adverse costs awards, has the potential to conflict with an individual's right of access to a court (an aspect of the right to a fair trial) under Article 6(1) of the European Convention on Human Rights (ECHR).

Keywords: CPR r 1(4)(2)(e); alternative dispute resolution; ADR; court orders; costs awards; fair trial; European Convention on Human Rights; ECHR

Chapter.  6859 words. 

Subjects: Constitutional and Administrative Law

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