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PART A
(a)
In England and Wales, the law on marriage requires the marriage to have broken
down irretrievably to qualify for a divorce. However, the current law that has been enforced
for almost half a century is more complicated than that. Before a court holds that a
marriage has broken down irretrievably, it needs to be satisfied that the petitioner has
established one of five facts. The first fact is that the petitioner cannot reasonably be
expected to live with the respondent following his behaviour. Another fact is that the
respondent consents to the divorce given that the couple has lived apart for two years. The
third fact gives rights to the petitioner to divorce the respondent without consent given they
have lived separately for at least five years.

After over 30 years of marriage, Mrs Owens consulted solicitors for a divorce in
2012. She then kept a diary of matters she would like to complain for two years. Mrs Owens
left the couple’s family home in 2015. She petitioned for divorce on the grounds of Mr
Owens’s behaviour based on s.1(2)(b) of the Matrimonial Causes Act 1973 in the Central
Family Court in London. Mrs Owens alleged that he had been disagreeable, moody and
humiliatingly harsh on her in public.  Even if most respondents to this claim do not really
want a divorce, they usually choose not to defend it. They think there is little point in
salvaging the relationship if the petitioner really wants a divorce. Nevertheless, Mr Owens
chose to defend the petition. He argued that he had not behaved poorly as Mrs Owens had
alleged. Contrary to Mrs Owens’s statements, he said that the marriage had been largely
successful, that it has not broken down irretrievably, and he hoped that Mrs Owens should
go back to reside with him.

Thus, in 2016, a trial was heard of Mrs Owen’s allegations. Mrs Owens was permitted
to amend her petition to elaborate the allegations. The court also allowed statements from
both parties and scheduled the hearing for a day, considering there were no witnesses other
than the parties in dispute. Mrs Owens proposed half a day while Mr Owens proposed three
days. In her amended petition, Mrs Owens provided 27 examples of Mr Owens’s alleged
behaviour from 2013. The judgement focused on four of these allegations. The judge on the
case rejected her allegations. He described them as exaggerated and flimsy, and that the

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“minor altercations” expected in any typical marriage. His Honour Judge Tolson QC
described that Mrs Owens had exaggerated her allegations and that she was “more
sensitive than most wives”. He decided that three incidents relied on were “isolated” and
“not persistent”. Although he was satisfied that Mrs Owens probably would never reside
with Mr Owens again, he was not satisfied that his behaviour was enough to make her case.
Therefore, the law had prevented the judge from holding that the marriage had broken
down irretrievably. The court had interpreted the law such that the respondent’s behaviour
must amount to a certain threshold of unreasonableness before the petitioner can petition
for divorce. Thus, Mrs Owens’s petition had to be dismissed.

A year later, Mrs Owens appealed to the Court of Appeal against the previous
decision. This appeal had been unsuccessful. By 2017, she had qualified for a divorce having
lived apart from Mr Owens for two years, had Mr Owens consented. However, Mr Owens
was insistent that he would not agree to a divorce. So, Mrs Owens further appealed this
case to the Supreme Court. Generally, it is not hard to petition for a case on the basis of
behaviour. Nevertheless, the Supreme Court was uneasy at some aspects of the judge’s
judgement. For example, the judge rejected Mrs Owen’s entire case after hearing evidence
that relates to only four of her twenty-seven allegations on Mr Owens’s allegedly
authoritarian behaviours. The Supreme Court questions if that approach was sufficient to
establish the cumulative effect of Mr Owens’s behaviour on Mrs Owens.

(b)
The issue in contention was over the interpretation of s1(2)(b) of the Matrimonial
Causes Act 1973. Mrs Owens had raised the issue of the interpretation of that subsection,
and the Supreme Court allowed that appeal to be brought. Her principal grounds of appeal
are such that the subsection should be interpreted to include the behaviour of Mr Owens’s
and how it affects Mrs. Owens to be unable to be reasonably expected to live with him.
Thus, if the petitioner really cannot continue to reside with the respondent, it can be
inferred that the petitioner cannot reasonably be expected to do so.

After analysing the law in regards to the behaviour in case, the Supreme Court
concludes that they cannot solely examine whether Mr and Mrs Owens can be reasonably

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expected to live together again. The courts must foremost acknowledge his behaviour
towards her and then consider its specific effect on her. The phrase “unreasonable
behaviour” should be interpreted not solely on Mr Owens’s behaviour, but if Mrs. Owens
can be expected to return to reside with him. On Mrs Owens’s behalf, Mr Marshall QC
conceded at the hearing that the principal ground had gone too far. Interpretation on the
subsection on the facts had narrowed substantially. Properly reflecting current societal
views, the Supreme Court suggests that the courts nowadays will usually be able to come to
the conclusion that it is unreasonable for the petitioner to do so.

However, the issue posed by the subsection is defined narrowly, such that it is
whether the respondent’s behaviour had been so awful that the petitioner cannot
reasonably be expected to live with him. The Courts referred to six historic judgements to
reach its decision. They agreed that these decisions provide the correct interpretation of the
subsection.

In expressing majority views, Lord Wilson confirms that the correctly interpreted
subsection cannot ignore the behaviour of the Respondent. The Court also dismisses any
suggestions that the issue was incompatible with Art 8 of the European Convention on
Human Rights.

(c)
In Lady Hale’s judgement, she makes it clear her lack of relish with the approach that
the judge has taken. She agrees with the lead judgement in terms of the law and its
construction. However, she was “troubled” by the trial judge’s repeated reference to
“unreasonable behaviour”. She stated that this approach, though convenient, is “deeply
misleading”. It would lead to the requirement of blame, which is actually irrelevant. The
advocacy for “no-fault divorce” can be quite misleading considering the current law does
not require blame.

The requirement that constitutes “behaviour” becomes yet more confusing. Lady
Hale was also concerned that HHJ Tolson QC had appeared to have assumed that the
complained behaviour had to be the cause of the disagreement. In agreement with Lord

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Wilson, Lady Hale confirms that this is “simply not the law”. She asserted that one of the
subsections under section 1(2) had to be fulfilled, but the Act did not require a “causal
connection” between them.

Ultimately, she shares the misgivings given in the lead judgement on the method in
which the hearing was conducted. She stated that cases like these should consider the
cumulative effect of many small incidents that Mrs Owens had alleged to be embarrassing
and authoritarian.

  Lady Hale stated that appeals are not usually allowed where the law is clear.
However, it was allowed on this case as the argument was on the effect of the respondent’s
behaviour towards the petitioner, and not the behaviour itself. Lady Hale then asserts her
opinion that the lower courts had been erroneous in the three aspects she had identified
earlier.

Given that the principle problem under examination does not allow the appellate court to
examine the case as a whole, she expressed that her preferred method would be to send
the appeal back for a retrial. Lady Hale states that she was “reluctantly persuaded” to
dismiss the appeal.

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PART B
5.
The English Legal System adopts the common law system which relies heavily on
statutes and case laws. To examine equity's role in common law, we need to understand the
historical development of these two components. Then, this essay will evaluate how equity
has become a necessary companion, and not merely an accessory to the common law.

Before the Battle of Hastings, the tribes of Celts and Anglo Saxons in England were
governed by customs. These customs are non-standardised and unenforceable, existing
merely as rules of behaviour that were communally developed. Tribal Elders decided the
outcome of cases. In 1066, William the Conqueror took over England. He sought to unite all
tribes under the Norman Rule. Judges in circuits practised justice according to local customs.
As they judged, they collected and compiled the best customs and applied the law
uniformly. Thus, the system of law 'common' to all became known as common law. Judges
followed the decisions of other judges in previous case, and thus the concept of doctrine of
precedent is followed. Judicial precedent is a source of law where future judges must treat
like cases alike to promote consistency in law.

           At the time, the only remedy available in common law was damages. Damages was
not a sufficient remedy to compensate all wronged victims. This illustrated a lacuna in
common law as there are problems that money cannot solve. Besides, common law was too
rigid. There must be an existing writ that covers the area of law for the claim to start a case.
There was only a limited range of writs, so victims who did not fit under a writ were not
eligible for a remedy. Provisions of Oxford 1258 recognised that the formation of new writs
is near impossible as there are too many writs already. An error in formalities could also
cause a case to be thrown out entirely.

           Common law gained power from 1250 and gradually transformed into an expensive,
inadequate and inflexible system of law. Aggrieved parties petitioned their grievances to the
King. The King passed these cases to the Lord Chancellor, named 'Keeper of the King's

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Conscience', who judged these cases individually. As the number of petitions increased, the
Court of Chancery was born. The Lord Chancellor was a bishop, so he was an expert in
religious affairs, but the same cannot be said for law in general. 'God-made law' is different
from 'man-made law'. He looked beyond formal documents and procedures and judged
according to the ideas of justice. Thus, the concept of equity was born. Equity is a collection
of legal rules that aimed to supplement the gaps of the common law. It ensures justice is
served by satisfying new needs like granting discretionary remedies aside from damages.
The process is also less formal and cheaper than common law courts. Cardozo in Graf v
Hope Building Corporation 1930 explains that equity is not a separate legal system, but it
aims to supplement common law. 

           Where common law judges were legally qualified experts, the Lord Chancellor was a
bishop with more religious influence. Subsequently, common law courts and the Court of
Chancery had conflicting judgements. Common lawyers resented how equity could be used
to restrict their jurisdiction. They argued that the quality of decisions varied with the length
of the Chancellor's foot, that it depended on the values of the individual Chancellor. Justice
appeared arbitrary as precedents were not followed, and each case was considered on its
merits, and nobody could predict the final judgement. Therefore, they referred to the King
for a decision. 

In the Earl of Oxford's Case 1615, it was decided that equity should prevail in the
case of a conflict. Gradually, equity began to be ruled by precedent and standard principles
and became no less rigid than common law. Once equity became a body of law, rather than
the arbitrary exercises of conscience, there was no need for its own courts. Consequently,
the Jurisdicature Acts of 1873-75 provided that all courts shall administer equity and
common law. Later in 1981, s49 of the Supreme Court Act finalised that the former shall
prevail in a conflict between equity and common law.

Although common law and equity both follow stare decisis, equity created maxims
to ensure morally fair decisions. The first maxim is 'He who comes to equity must come with
clean hands.' Claimants who are in the wrong are not eligible for an equitable remedy. In
D&C Builders v Rees, Lord Denning refused to apply the doctrine because the Reeses took

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advantage of the builders' financial situation, and therefore did not “come with clean
hands”. The next maxim is 'He who seeks equity must do equity.' He who seeks equitable
remedies must also act fairly towards their adversary. In Chappel v Times Newspaper Ltd,
the injunction was declined as the employees refused to stop their strike against their
employers. Lastly, 'Delay defeats equity.' A claimant should not take an unreasonable
amount of time to raise his claim. The courts examine the unreasonableness of any delay as
a matter of fact for each case. In Leaf v International Galleries, the buyer took five years to
raise his claim, so the court refused recession on the grounds of delay.

Over time, equity increased the number of remedies available to claimants. An

injunction is an order to do or not to do an action. For example, prohibitory injunctions
refrain a party from taking action. They may be used to safeguard confidential information
in economic dealings, prevent a breach of contract, or stop a party from taking legal action.
In Warner Brothers v Nelson, an injunction was issued to prohibit Ms Davis from filming
with other companies against her contract with Warner Brothers. Claimants may be
awarded both an injunction and damages in a case—the damages act as compensation for
the past problems. 

Specific performance requires a party to fulfil a contract's performance, protecting

the expectation interests of the innocent party. It is usually available on the sale of land but
otherwise is not generally available if damages are an appropriate alternative. Rescission is a
remedy in contract cases. It helps unwind a contract between parties so the parties may
return to their pre-contractual positions as far as possible. This is used for cases of a breach
of fiduciary duty, innocent but material misrepresentation or equitable fraud. The following
remedy is rectification, where an accidental mistake in a document is altered to reflect the
parties’ true intentions.

           In modern times, recent remedies include a freezing order and search order. A
freezing order, also known as a Mareva injunction, is granted to freeze assets preserve a
defendant's assets in his account and prevent the defendant from voiding a financial claim
by placing his possession beyond the reach of the applicant. A search order, or an Anton
Piller order, allows the claimant to search the defendant's premises and collect any

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documents or materials which could act a proof. A search order's function is to preserve
evidence or property, which is the subject of an action. Where damages can be claimed as
or right, the equitable remedies mentioned above are provided upon a judge’s discretion to
ensure fairness.

A 2016 paper by Samuel Bray wrote that the Lord Chancellor had adopted certain
doctrines for homeowners. The modern equity answer to this is trusts and mortgages. A
mortgage is a debt tool guaranteed by collateral of certain real-estate property that the
borrower must pay back with a predetermined set of payments. Individuals and businesses
use mortgages to purchase large real estates without paying the entire sum immediately.
The bank can foreclose if a borrower stops paying his mortgage. Secondly, trust is a
relationship whereby property is held by a party for another person's benefit. A settlor
creates a trust and pass property to a trustee. The trustee holds that property for that
trust's beneficiaries. It can be used for pension funds or property settled on family
members.

Nowadays, though common law and equity are practised simultaneously in a dual-
system, their distinction is still important from the point of law. Common law remedies are
granted as of right, and equitable remedies are up to the courts' discretion. Professor
Walter Cook opined that equity could not be considered a single law system but a
complementary one. Statute law relies on codified legislation, and common law provides
clarification and interpretation of past cases. Thus, these sources of law complement each
other by providing modern solutions and creating a precedent.

Professor Ashburner opines otherwise. He described common law and equity as two
rivers that never mingle. Many judges have argued against this opinion judicially. Lord
Diplock in United Scientific Holdings Ltd v Burnley Borough Council argued that
Ashburner's metaphor was deceptive, infirming that the Jurisdicature Act 1873 is still in
effect. Lord Denning shares a similar view in Federal Commerce and Navigation Ltd v
Molena Alpha Inc, describing that these 'streams' are intermingled to the point they are
“indistinguishable”. He added that the court's role is to ensure fair judgment and justice, not
differentiate these law systems. 

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           However, the development of equity is far from over. Michael Graetz, the author of
"The Wolf at the Door," suggests that we can extend the reach of equity to aid economic
distress and unemployment, especially in precarious times of the Covid-19 pandemic. The
author suggests we should include common law legislation to help with wage increment and
health care insurance. We see that equity can be expanded to aid with social justice and
improving living standards.

We can conclude that common law defects brought about equity, and equity aims to
fill in the lacuna of common law by providing fairness and justice to the legal system. As
William Blackstone said, law without equity, though “hard and disagreeable”, is much
tolerable than equity without law for the public good. However, as history and present
needs demonstrate, that is not an acceptable outcome. Thus, we can conclude that not only
does equity “gloss” over common law, it has become a necessary companion for a more
holistic justice system.

(1605 words)

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7.
In theory, judges are enforcers of law that applies and utilises statutes passed by
Parliament. This is to abide by the doctrine of separation of powers. This doctrine is
traceable to Aristotle and Montesquieu’s The Spirit of the Laws. Bradley and Ewing noted
that the doctrine may mean that one organ of government should not control or interfere
with the work of another. For example, the judiciary applies and interprets the law enacted
by Parliament whilst the executive executes the law within the state. The purpose of the
doctrine is to avoid overconcentration of power under one body. However, in reality, judges
sometimes exercise creativity when passing judgements. Thus, this overlap between the
judiciary and law-making against the doctrine of separation of powers has been a topic of
heated debate. The declaratory theory states that judges do not make law but discover it as
it is. In contrast, judicial activism admits the modern reality that judges have a hand in
creating and changing laws.

The declaratory theory of law suggested by William Blackstone states that judges do
not make law but declare existing law as is. The declaratory theory fits in the ideal narrative
of pure separation of powers that the three organs of state should not overlap. It also
recognises the supremacy of Parliament as the sole law-making body. When judges create
law to remedy an injustice, it comes at the cost of legal certainty.

Lord Simonds demonstrates this theory in Midland Silicone Ltd v Scruttons Ltd,
stating that his “first duty” as a judge is to “administer justice” according to the law, not
follow an abstract idea of justice. Lord Devlin also supports this theory, stating that judges
should not be too keen to reform society or be professionally concerned with social justice.
This is because the ultimate role of a judge is not to make decisions based on their personal
beliefs of what justice is; it’s the Parliament’s. As Lord Simon said in Miliangos v George
Frank (Textiles) Ltd, judges are not trained to see the distant scene, and thus their capacity
cannot be limitless. Judges are unelected and therefore unrepresentative of the society.

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Besides, judges lack diversity as their composition is mainly white, middle-aged men who
graduated from Oxbridge and privileged backgrounds. Thus, it is not ideal to rely on judges
with such limited, generic traits that reflect only a specific, perhaps elite group of society,
which may lead to a restricted outlook. When drafting “New Plan for the organisation of
the Judicial Establishment in France”, Bentham stated that judges’ foremost quality is
obedience to the law. Any attempts otherwise should be met with forfeiture of his office. 

Blackstone also describes judges as "living oracles", tasked to decide in doubtful

cases. It is said that a judge represents a part of the complete wisdom of law compiled
through decisions before his own. Therefore, when a judge decides on a new legal
uncertainty never addressed before in common law, he does not do so in the capacity of an
original author but as an agent of tremendous collective wisdom. Dworkin interestingly
related this concept to a chain novel, comparing judges as authors driven to bring out the
best version of a novel, which is viewed as a holistic interpretation of the law.

Though there may be good reasons for the doctrine of precedent, its operational
process is undoubtedly haphazard. Firstly, judges are deciding the cases presented to them
on a case-by-case basis. Frequently, their decisions are influenced mainly by the quality of
arguments presented to the courts. This idea was brought forth by Lord Wilberforce in Air
Canada v Secretary of State for Trade, where he describes a court's duty to do justice
between the litigants and not any additional burden to ascertain independent truth. Any
imperfection in evidence would significantly affect the outcome of a decision which may be
unjust for another case with similar facts. Thus, it is reasonable to apply separation of
powers, as judges may not be the best equipped to legislate.

In Kleinwort Benson v Lincoln City Council, Lord Browne-Wilkinson propounded the

idea that judges do make and amend the law in reality. Judges made the whole of common
law, and these judicial decisions are necessary to keep up with the ever-evolving society.
Lord Reid also said that we cannot believe in fairytales anymore and should accept that
judges make law. From their statements, we see the absurdity of applying the declaratory
theory in the reality of common law as its very basis originated from principles and laws

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created by judges after the Norman Conquest. Thus, judicial activism comes into play, where
judges sometimes create new law and retrospectively apply it to the case in question.

The relationship between the legislature and judiciary was examined in McLoughlin
v O'Brian. Lord Salmon argued that the judge had a limitless jurisdiction over common law
to be flexible when deciding a case on the facts at hand. This extension of principles is
similar to Dworkin's analogy of a chain novel. Lord Scarman suggested that judges should
freely legislate where possible where the justice of the case demands it. However, judges
should still refer to Parliament if there is an extreme policy matter to be decided. This
assertion is fair. If judges could legislate as they please in intense policy affairs, the law
would be too arbitrary. An instance of dilemma that exists to balance the two aspects of
judicial law-making can be seen in the two tests of recklessness in Criminal Law, the
Caldwell and Cunningham Tests. 

Lord Denning demonstrated excellent examples in Re Vandervell Trusts (No.2) and

'The Reform of Equity' when he said that judges do frequently make law, though it may be
'hearsay' to say that. Indeed, he practised what he preached by introducing the equitable
principle of promissory estoppel in Central London Properties v High Trees to mitigate the
harshness of common law.

The case of R v R demonstrates judicial activism. In this case, Lord Lane creatively
interpreted an Act of Parliament that a husband can now be held guilty for raping his wife
due to the rise of feminism and “changing social attitudes” towards women's autonomy. It is
through quality decisions like these that laws made by the judiciary have been well-
received. In Lord Dyson’s 2014 speech “Are the judges too powerful”, he explained that this
was a change that the judiciary confidently made. He described the policy choice to be
“uncontroversial, widely welcome and long overdue”. The judges were right to step in as
Parliament had plenty of time to reverse this decision and did not. Shaw v DPP held that a
defendant's conduct to corrupt public morals was an offence, which amounted to a new
offence created through this case. Though subtly, it is evident that judges make law, even in
policy matters, in their own ways. In Miliangos v George Frank (Textiles) Ltd, the House of

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Lords utilised the Practice Statement 1966 to overrule Re United Railways to hold that
damages can be awarded in any foreign currency specified in the contract. This decision was
needed to warrant a new approach to new circumstances of unstable sterling. Thus, in
developing the law, they have created a new rule.
 
Nevertheless, the court's ability to create laws in policy matters that involve moral,
ethical and social issues are limited in several cases. The case of Airedale NHS v Bland
concerned the ethical concern of continuously supplying Tony Bland, a comatose victim of
the Hillsborough Stadium disaster, drugs and artificial feeding. Most Law Lords, particularly
Lord Browne-Wilkinson, preferred to leave such sensitive policy matters up to the
Parliament's consideration and discussion.

The application of judicial law-making in these cases are seen to be justified, as they
quickly resolved the arising problem swiftly. Though Parliamentary action cannot be
condemned to be entirely tardy, Lord Wilberforce in Miliangos v George Frank (Textiles)
Ltd was also right to doubt that constant comprehensive legislative reform could be
expected from the Parliament in all cases. In Prescott v Birmingham Corporation, the courts
held that a local authority had no power to grant free bus travel passes to state retirement
pensioners. Shortly following this, the Parliament passed the Public Service Vehicles Act
1955 to legalise such schemes. From this case, it is proved that the judicial process may deal
with situations as they arise, which would be quicker than Parliamentary action. Lord Goff in
Woolwich Building Society v Inland Revenue Commissioners also shared the same
sentiments that constitutional constraints are not sufficient in the principle of justice.

A double-edged argument of judicial law-making is also that political motivations do

not bind judges’ decisions. On one hand, Parliamentary time or party-political wills can be
exempted. On the other, there is no electoral accountability nor constraints. If the doctrine
of separation of powers is so apparent, and judges are overstepping it so blatantly, why
haven't the Parliament stopped this action? Lord Dyson in his speech infers that the
Parliament does not necessarily frown upon this action, nor are judge-made laws “bad” per
se. Nevertheless, as Lord Scarman rightly put in Duport Steels Ltd v Sirs, this power should

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be used sparingly. If judicial power knows no limits, then the confidence in the judiciary will
be replaced by fear of arbitrary law. Parliament would then be pressured to limit judicial
power, then judges' ability to practice justice will be further limited by law, which is a lose-
lose situation for everyone.

Francis Benion acknowledges that the "appetite" of judges to amend the law as they
see fit, rather than waiting for Parliament's instructions, is growing. As Lord Radcliffe said,
judges cannot help but overlap onto the legislature. Instead of viewing this as a usurpation
of the judicial function, there is assistance between the legislature and judiciary. In some
cases, judicial law-making can even be seen to be necessary to update the law. In the end,
isn't the purpose of the law to uphold justice, even at the cost of established constitutional
principles like the doctrine of separation of powers?

(1568 words)

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8.

Generally, court trials are considered the default method of settling civil
disputes, especially in jurisdictions where rules of procedure and judicial independence are
well established. Alternative Dispute Resolution (ADR) is a collective description of conflict
management techniques other than the generic trial process. This essay will evaluate the
civil justice response to “compel” parties to use ADR by examining decided cases and the
merits of using ADR as a dispute resolution method.

Lord Woolf’s 1990 publication encouraged the use of mediation in settling disputes
rather than traditional court processes as the former is more cost and time effective. He
reviewed that a party’s litigation cost for cases under £12500 may well exceed the disputed
amount in 40% of cases. This expense builds a barrier around accessibility to justice.
Laypeople may also be intimidated by the court system as two civil procedures are
governing the courts. In his speech “Mediation-An Integral part of our litigation culture”,
Lord Clarke stated that 98% of cases are settled before trial. Lord Clarke was of the view
that Lord Woolf’s main recommendation was to encourage settlement, thus bringing cases
to trial to a minimum.

Arbitration is the submission of parties to the judgement of a person to an arbitrator.

The Arbitration Act 1996 holds that courts will typically refuse to deal with contracts with
arbitration agreements. Arbitrators’ ‘awards’ are legally binding and may be enforced
through the courts. Arbitration may be used for international commercial and shipping
disputes. Mediation is a voluntary process that assists parties in reaching an agreement
through a neutral third party. Any binding agreement here can be enforced through a
contract. Mediation can be used for cases like family disputes or employment issues.
Conciliation is similar to mediation, but the third party adopts a more interventionist role in
assisting parties to settle. The Advisory, Conciliation and Arbitration Service (ACAS) plays a
high-profile conciliation role in resolving disputes. Negotiation is a quick and cheap way of
settling a dispute for small-scale matters, like between consumers and shopkeepers.

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Lord Woolf’s final report shows pressure pushing towards the direction of ADR. Civil
Procedure Rule 1.4 requires courts to undertake case management by providing
information and encourage parties to use ADR where suitable. If there are no reasonable
reasons for refusing to cooperate with a judge’s proposition of following ADR, a financial
penalty may be incurred to the recalcitrant party.

Despite the solid suggestion for the use of ADR demonstrated above, this
procedure’s use was not as frequent between 1996 and 2001. Since 2001, several landmark
cases clarified courts’ position in compelling parties to use ADR. In Cowl v Plymouth City
Council, Lord Woolf held that parties needed to consider ADR before legal proceedings,
especially where public money is in question. This decision was followed in Dunnett v
Railtrack plc where Railtrack’s refusal to contemplate mediation before appeal was
sufficient reason to deny them legal costs. Judges in Hurst v Leeming were prepared to
accept valid reasons for the refusal to try ADR, but the reasons should be fully justifiable for
parties to avoid penalty by courts. In Halsey v Milton Keynes General NHS Trust, the Court
of Appeal were more lenient and held there was no presumption that parties should try
mediation and there needed to be a real chance of success for that method before denying
parties their legal costs. In Gore v Naheed, Briggs LJ stated that parties’ failure to cooperate
with the judge’s encouragement of trying ADR should not be met with an automatic cost
penalty. The courts should only take that into account during cost discretion.

Since the late 1990s, government policy has favoured mediation in commercial, civil
and family disputes. Mediation was also promoted for judicial review cases and employment
issues. Under CPR 26.4A, cases following the small claims track in the County Court shall
automatically consider mediation unless the parties object. The provisions of the Children
and Families Act 2014 also mandates parties to participate in a Mandatory Information
Assessment Meeting (MiAM) before applications to family courts. So, there is mandatory
consideration of mediation, but not mandatory mediation itself.

A legal expert interviewed by ICF Consulting Services Limited (ICF) stated that ADR
could resolve every case. Two ADR providers even agreed with his assertion that there are

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no cases where courts are required. Consumers face direct and indirect costs during civil
proceedings. Direct costs can come from expert assistance, travelling, postage and more.
Indirect costs may be time off work, etcetera. Direct costs in courts can go up to £100-500,
whereas ADR likely costs under £50. Besides, parties with higher amounts in dispute are
more likely to choose courts over ADR. Thus, we see that ADR is cheaper than courts.
Though the small claims track is generally cheap too, fees may vary depending on the
dispute’s value. 

Next, the court system consumers take either 5-10 or over 40 hours of their time,
whereas two-thirds of ADR consumers spend less than 11 hours. Though proceeding times
vary significantly between cases, it can be generally inferred that ADR is a quicker process
than the courts. Another reason that ADR is speedier may be due to the expertise of the
person handling the subject matter. This factor may also promote confidence during parties’
dealings.

However, many complainants mentioned that the ADR process took more time than
expected. Despite these processes generally taking less time than the courts, ICF’s survey
found that 31% of respondents were discontent with the delay. In contrast, only 13% were
unsatisfied with the time used for court processes. They complained that contact to the
Ombudsman was slow, and demands for submission were lengthy. This greatly affected
their satisfaction with the system.

Traders have also expressed their preference for ADR due to the confidentiality it
offers. Disputes may be settled quickly and discreetly, which is paramount for their
reputation. In interviews conducted by ICF, traders demonstrated positive feedback to the
process as it prevented consumers from needlessly escalating a case publicly. Disputes
regarding family matters may also appreciate the confidentiality offered here, especially
when there is a child in question to better protect their prospects. Also, the adversarial
nature of courts may also be intimidating for some. In contrast, the casual and less formal
approach in ADR sessions allocate more power to the parties and is less stressful. This could
be useful for parties that have mental anxiety or other concerns.

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The Crown Prosecution Service (CPS) has enormously endorsed ADR methods in civil
disputes, particularly mediation. Mediation offers parties a more hands-on engagement to a
dispute at a fraction of cost in courts. Besides, this process is relatively more straightforward
compared to the court process. According to ICF findings, 62% of the ADR users reported
that ADR was easy to use compared to the 53% of the court process. Lord Phillips in
‘Alternative Dispute Resolution: An English Viewpoint ’ recognised the merit of ADR in
England and Wales. Lawyers are likely to reach a consensus before a trial as that outcome
by judges is riskier. Deciding an outcome on their terms may be preferable for parties.

In many common law jurisdictions over the past 20 years, there has been a drastic
decrease in cases brought to trial. This phenomenon has been described as ‘the vanishing
trial’. However, not all commentators are convinced that ADR may produce a just result.
Hazel Genn described ADR as a ‘shiny-eyed evangelist’, where mediation will cause
implications for the civil justice system’s collective interest. Successful mediation does not
mean justice is achieved, only that a conclusion has been reached that parties can ‘live
with’. Besides, valuable precedent and development in law may be lost through the route of
ADR. If landmark cases like Donoghue and Stevenson were resolved through ADR, the
neighbour principle would have been buried.

In ‘Against Settlement’, Owen Fiss argued that ADR increases the power disparity
between parties for various reasons. Litigants with fewer resources may not be as capable
as their opponent in analysing situations. They might also be pressured to settle for lesser
amounts than they deserve because they are pressed for money. Besides, because the
courts are costly, more indigent litigants may not have the ability to bring their dispute to
the courts. So, Fiss in ‘The History of an Idea ’ further argues that the peace formed from
settlement might suffice a ‘precondition’ to justice but is not justice itself. 

Richard Abel argues this in ‘The Politics of Informal Justice’: Procedural rules in
courts may be very formal, but they protect disadvantaged parties.  However, McThenia
and Shaffer share different views than Fiss. In response to Fiss’s article, they suggested that
he wrongly ‘assumed’ that ADR would achieve peace at any price. They argue that
settlement is neither a truce nor avoidance, but reconciliation and confrontation.

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Besides, ADR may allow an intervening third party like a mediator to manipulate one
of the parties by coercing them into decisions rather than having them reach their
consensus. Genn also suggested that policy-makers may have their motivations for
promoting ADR despite it not being aligned with values of justice. These include reducing
expenditure on court administration, reducing the backlog of court cases and reducing
enforcement issues.

In the article “Reaping what we sow: anti-litigation rhetoric, limited budgets, and
declining support for civil courts”, Elizabeth Thornburg stated that more funding should be
given to the civil justice system to employ more judges and create new courts. She further
suggested that England follow Scotland and Victoria’s footsteps in their suggestion of
establishing a Civil Justice Council to evaluate civil justice and reform. In 2015-2016, LJ
Briggs suggested creating online courts in the Civil Courts Structure Review. This may be
even more relevant today due to the pandemic, and parties may not be able to attend
courts physically.

Though Lightman J described ADR as the ‘heart of today’s civil justice system’, it is
erroneous to assume that ADR is automatically superior to the traditional court process in
terms of effectiveness to resolve disputes among parties. The principle judex est lex loquens
places the judge at the pinnacle of the legal process. Only when settlement methods have
been exhausted, judges should intervene to apply legal principles. 

(1600 words)

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