Question 4: Discuss how the courts have encouraged parties to engage in alternative dispute

resolution (ADR) in resolving civil disputes.

What is Alternative Dispute Resolution (ADR)?

Alternative Dispute Resolution ("ADR") refers to any method of resolving conflicts outside of
court. ADR brings together all methods and procedures for resolving disputes that take place
independently of any governing body. Mediation, arbitration, conciliation, and bargaining
are the most well-known ADR techniques. ADR is commonly used in the UK to refer to any
method of resolving a dispute other than litigation or arbitration, or just non-adjudicative
methods like mediation, executive tribunal (basically a more formal form of mediation,
known as "mini-trial"), and early neutral evaluation, for example 12.

The ability for the parties to resolve their disputes in a way that is admissible outside of
customary legal or court processes is a feature shared by all ADR techniques, but each is
subject to a particular set of regulations. For instance, unlike in mediation and conciliation,
where the third party's role is to encourage a mutually beneficial agreement between the
parties, in negotiation, there isn't a third party who steps in to help the parties reach a
resolution. An arbitrator or panel of arbitrators will play a significant role in the arbitration
process since they will produce the arbitration award, which is binding on the parties. In
contrast, there are no binding decisions made by the third-party during conciliation or
mediation3. Since the parties typically combine the use of these various ADRs, it is
inappropriate to compare and contrast all ADR techniques if they are all distinct from one
another. ADRs consequently have a complementing character and are involved at several
levels4.

1
Legal information institute, 'Alternative Dispute Resolution' (Cornell Law School, -)
<https://www.law.cornell.edu/wex/alternative_dispute_resolution> accessed 28 April 2023
2
Katie Shonk, 'What is Alternative Dispute Resolution?' (Harvard Law School, 11 April 2023)
<https://www.pon.harvard.edu/daily/dispute-resolution/what-is-alternative-dispute-resolution/> accessed 28
April 2023
3
-, 'What is Alternative Dispute Resolution?' (FindLaw, 8 October 2020)
<https://www.findlaw.com/hirealawyer/choosing-the-right-lawyer/alternative-dispute-resolution.html>
accessed 30 April 2023
4
Thomas reuters, 'Alternative Dispute Resolution (ADR)' (Practical Law, 2023)
<https://uk.practicallaw.thomsonreuters.com/0-107-6391?
transitionType=Default&contextData=(sc.Default)&firstPage=true> accessed 28 April 2023

1
ADR can be utilised in a range of legal conflicts that arise in a variety of legal fields. Included
in this are: Public Disputes, Family Law, Employment Law, Commercial Law and other issues
involving faith communities, schools, and not-for-profits. Parties to a dispute should consider
the nature of the dispute, the specifics, and the identities of the parties when deciding
which alternative course of action to take (e.g., are the parties both individuals, are they
both large organisations or businesses, is the dispute between a single person and an
organisation or corporation, etc.)567.

Difficulties of Using Courts to Resolve Disputes.

Generally speaking, litigation can be a challenging and emotionally taxing affair where you
won't know the result until the judge rules on it. Alternative dispute resolution techniques,
like, are therefore gaining popularity. The price of going to court is another factor. Once the
case is underway, it is impossible to predict how it will develop; if it grows more involved,
this could result in unexpected expenses. The proceedings themselves are formal, intricate,
and challenging for the parties to understand8.

Court backlog is one of the main issues with employing litigation. There is frequently a
sizable backlog of cases waiting to be assigned a court date in the U.K. courts due to the vast
number of cases waiting to be considered. Even with a hearing date established, it can still
be a few months before your case is concluded. This frequently entails additional costs in
addition to the anxiety that comes with awaiting the lawsuit's start date. Reschedules and
postponements are a common problem in our UK judicial system, which can raise costs and
cause additional stress. In many cases, you can also be waiting for another party to set a

5
-, 'Alternative Dispute Resolution: Why Has It Become So Popular?' (HMC Lawyers, 24 November 2017)
<https://hmclawyers.com/mediation-arbitration/alternative-dispute-resolution-become-popular/#:~:text=Why
%20has%20ADR%20become%20more,process%20and%20lower%20the%20costs> accessed 28 April 2023
6
Todd b carver and albert a vondra, 'Alternative Dispute Resolution: Why It Doesn’t Work and Why It Does'
(Harvard Business Review, -) <https://hbr.org/1994/05/alternative-dispute-resolution-why-it-doesnt-work-and-
why-it-does> accessed 30 April 2023
7
-, 'What is Alternative Dispute Resolution?' (FindLaw, 8 October 2020)
<https://www.findlaw.com/hirealawyer/choosing-the-right-lawyer/alternative-dispute-resolution.html>
accessed 30 April 2023
8
-, '8 Reasons to Choose ADR over Litigation to Resolve Your Dispute' (Arbitration Resolution Services, 22
March 2018) <https://www.arbresolutions.com/8-reasons-choose-adr-litigation-resolve-dispute/?
doing_wp_cron=1683003606.3328959941864013671875> accessed 29 April 2023

2
date, which can prolong the process9. Using types of ADR like arbitration and mediation can
help you resolve some disputes more quickly and in a less formal manner 10.

In addition, litigation itself might take a lot of time. Litigation typically takes a long time to
conclude. A decision and ruling might not be rendered for several years at times. Particularly
in more complicated circumstances, this is true. This may require extensive waiting time
until the case is resolved for both parties participating in UK legal proceedings. When a
situation calls for or would benefit from a speedy resolution, arbitration or mediation may
be the preferred course of action. There may be other ways to come to a fair conclusion that
benefits all sides.

Relationships may suffer if one chooses to use the legal system. Naturally, seeking redress
through the British legal system may be detrimental to any established relationship between
the two parties. It is common for the trial process to permanently create rifts amongst
people involved long after the court hearing and the verdict. For business and personal
relationships to endure the effects of a court appearance when judgement has been
rendered, litigation can be a difficult option.

Litigation is also impersonal in nature. If you choose to pursue litigation as a method of

dispute resolution, it is typically impossible to take advantage of possibilities for dialogue by
developing relationships. This can be a crucial strategy for ensuring that your point of view is
completely understood and provides the means for persuasion to be given in a more
individualised and sympathetic manner. Typically, the process of litigation will not benefit
from any kind of rapport-building during court hearings. Judges typically only have access to
the most crucial case facts1112.

Why do Courts Use Alternative Dispute Resolution (ADR)?

9
Shane coons, 'Courts Often Encourage Alternative Dispute Resolution' (Shanecoonslaw, 1 January 2018)
<http://shanecoonslaw.com/alternative-dispute-resolution-often-encouraged-courts/> accessed 30 April 2023
10
-, '6 Advantages of Alternative Dispute Resolution' (Breakthrough Mediation, 26 Jan 2021)
<https://www.btmediation.com/advantages-of-alternative-dispute-resolution/> accessed 30 April 2023
11
Susan hopcraft, 'Can the Court require you to use alternative dispute resolution?' (Wrighthassallcouk, 4
October 2019) <https://www.wrighthassall.co.uk/knowledge-base/can-the-court-require-you-to-use-
alternative-dispute-resolution> accessed 28 April 2023
12
-, 'Advantages And Disadvantages of Litigation: A Quick Guide' (Robertsons Solicitors, 14 February 2022)
<https://robsols.co.uk/advantages-and-disadvantages-of-litigation-a-quick-guide/> accessed 29 April 2023

3
Courts use ADR procedures for a variety of reasons 13. These incentives include making
participants happier, and saving time, and money14. However, administrative, political, and
other pressures may result in the emergence of another category of motivations 15. Whatever
the driving forces, a court intending to offer an ADR programme must make sure that
participants receive a fair procedure16. Additionally, even though the results of a court ADR
programme might not be exactly the same as those obtained through traditional litigation,
the parties involved must believe that the procedure and the results were fair 1718.

• Participants' Contentment

Many court ADR programmes place a strong emphasis on improving participant satisfaction
with the resolution procedure. This issue is framed in terms of justice by some judges. For
instance, some courts may inquire as to whether the party who filed the lawsuit felt that
justice was done even though they lost. Justice may be viewed by other judges in terms of
client satisfaction. These judges may inquire as to whether the plaintiff felt they received
good service when they attended court. Any programme must make sure that the parties
are properly served, regardless of how courts phrase their inquiries. The effects of better
party experience can take different forms in different areas of the court. For instance: 1. In a
divorce court, a mediation programme may raise procedural justice metrics including an
unrepresented parent's perception of the process' fairness, including whether or not they
felt they had a voice in it and were heard; 2. In a juvenile court, a restorative justice
programme may raise the satisfaction levels of the offender (by limiting re-offending or
improving the future outlook), the community (by reducing tensions or reducing offences),
and the victim (by allowing them to comprehend why the offence occurred or receive

13
-, '6 Advantages of Alternative Dispute Resolution' (Breakthrough Mediation, 26 Jan 2021)
<https://www.btmediation.com/advantages-of-alternative-dispute-resolution/> accessed 30 April 2023
14
Rsi, 'Why Do Courts Use ADR?' (Resolution System Institute, -)
<https://www.aboutrsi.org/resource-center/why-do-courts-use-adr#:~:text=For%20example%2C%20courts
%20may%20believe,and%20with%20fewer%20court%20appearances> accessed 29 April 2023
15
Shane coons, 'Courts Often Encourage Alternative Dispute Resolution' (Shanecoonslaw, 1 January 2018)
<http://shanecoonslaw.com/alternative-dispute-resolution-often-encouraged-courts/> accessed 30 April 2023
16
Sg courts, 'Alternatives to Trial' (Judiciarygovsg, -) <https://www.judiciary.gov.sg/alternatives-to-trial>
accessed 30 April 2023
17
-, 'Benefits of alternative dispute resolution' (Local Court New South Wales, 7 March 2023)
<https://www.localcourt.nsw.gov.au/alternative-dispute-resolution/benefits-of-alternative-dispute-
resolution.html> accessed 30 April 2023
18
-, '8 Reasons to Choose ADR over Litigation to Resolve Your Dispute' (Arbitration Resolution Services, 22
March 2018) <https://www.arbresolutions.com/8-reasons-choose-adr-litigation-resolve-dispute/?
doing_wp_cron=1683003606.3328959941864013671875> accessed 29 April 2023

4
recompense); 3. In a child dependency court, a co-mediation programme may have
additional advantages including greater services for biological parents, more communication
between participants, and a reduction in the amount of time children spend in foster care.

• Cost and time savings

Saving time and money encompass more than just the hours and dollars spent; they also
take into account the whole number of resources used by the court and the parties. For
instance, courts with heavy caseloads frequently turn to ADR in the expectation that shifting
cases to the ADR procedure may reduce case backlogs and lighten the judges' caseloads.
Many courts have turned to ADR procedures to shorten the amount of time that both the
court and the parties spend on a case. The amount of time spent on discovery and other
case-related tasks by solicitors, as well as the level of compliance, which establishes how
much activity will be required to address compliance issues after case closure, are all factors
that can be measured to assess these time savings. ADR may result in savings in a number of
different ways. For instance, courts may think that parties to an ADR process may save
money because ADR may cut down on the amount of time attorneys spend on a case, the
amount of discovery that is done, and/or the possibility of a case settling sooner and with
fewer court appearances. A reduction in court hearings and trials can result in cost savings
for the courts, as can the time that a judge or other court workers would have spent on the
case19.

• Administrative, political, and other reasons

Numerous organisational and human factors may also have an impact on a court's decision
to use ADR. ADR programmes are implemented in some courts in response to a directive
from a senior court or because of a legislative directive. The intention of a judge or other
leadership member to achieve a political objective, such as pleasing a county board, or keep
a campaign pledge to modernise the courts, may also have an impact on the decision to
establish an ADR programme. Additionally, other courts might determine that adopting a

19
Sg courts, 'Alternatives to Trial' (Judiciarygovsg, -) <https://www.judiciary.gov.sg/alternatives-to-trial>
accessed 30 April 2023

5
particular form of ADR is simply the right course of action for a certain area and
consequently a programme2021.

Encouraging Alternative Dispute Resolution (ADR) to Parties.

A working group on alternative dispute resolution ("ADR") was established by the Civil
Justice Council ("CJC") in 2016 to examine the ways in which ADR is currently promoted and
positioned within the civil justice system in England and Wales. In order to investigate
alternative kinds of encouragement and evaluate reform suggestions, the terms of reference
included a review of the current methods of encouraging mediation (and other forms of
ADR) in civil proceedings included in the Civil Procedure Rules, case law, and judicial
authorities2223.

In October 2017, an interim report was released, and we provided comments on it here. At
the time, the Working Group's consideration of making mediation mandatory—i.e.,
introducing an administrative requirement for proof of ADR activity as a prerequisite to
taking any specific step in the litigation—was our main concern (along with that of many
other practitioners and commentators). Thankfully, any such compulsion is no longer an
option. The Working Group directly discusses the replies to its interim report in its final
report, stating that "there was no or very little support for anything approximating blanket,
compulsory, or automatic referral to mediation." One of the main points that respondents
brought up time and time again was the fact that the best time for mediation can vary,
making a mandatory, pre-set date for mediation insensitive and ineffective. The Working
Group does not endorse broad-based coercion, and the final report explicitly states as
much24. Additionally, the Working Group addressed three separate (yet connected) issues in
its final report: (1) public awareness; (2) accessibility; and (3) government and judicial
support for ADR. On these three concerns, the final study presents 24 suggestions. The
20
-, '4 Advantages of ADR over litigation' (Prowse Chowne Legal Counsel Patent & Trademark Agents, -)
<https://www.prowsechowne.com/blog/advantages-of-adr-over-litigation> accessed 29 April 2023
21
Rsi, 'Why Do Courts Use ADR?' (Resolution System Institute, -)
<https://www.aboutrsi.org/resource-center/why-do-courts-use-adr#:~:text=For%20example%2C%20courts
%20may%20believe,and%20with%20fewer%20court%20appearances> accessed 29 April 2023
22
-, 'Why is ADR Encouraged?' (GHMA LAW, -) <https://ghma.law/why-is-alternative-dispute-resolution-
encouraged/> accessed 30 April 2023
23
Lewis Silkin, 'Encouraging ADR: Civil Justice Council Publishes Final Report' (Lexology, 19 December 2018)
<https://www.lexology.com/library/detail.aspx?g=dbe77247-24f0-4494-b4a5-c75d4b3f467c> accessed 30 April
2023
24
Lewis Silkin, 'Compulsory mediation?' (Lewis Silkin, 11 January 2018)
<https://www.lewissilkin.com/Insights/Compulsory-mediation> accessed 30 April 2023

6
proposals for parties to commercial litigation and their solicitors for how the courts should
encourage and reward parties for using mediation and other forms of ADR may be the most
intriguing ones25. Key recommendations include a review of claim documents, court forms,
pre-action protocols, and guidance documents to ensure that ADR will be attempted
effectively; an urgent review of the Halsey guidelines for imposing costs sanctions to restrict
the circumstances in which a refusal to mediate is considered reasonable; and more. the
retention and stricter application of the autopsy cost sanction under the Halsey system; the
medium-term introduction of an arrangement which will result in parties engaging in ADR
through the "Notice to Mediate" system currently in place; and a greater degree of court
intervention during the case management process (i.e., when decisions to use or not use
ADR are being made) as opposed to waiting until after judgement. A formal invitation to
mediate from one party to the other will initiate the process; if the parties cannot agree on a
mediator, one will be selected from a list approved by the court26.

A new website to serve as an online "one stop shop" for information about all the various
forms of ADR is also suggested in the report, along with the formation of a judicial-ADR
liaison committee so that ADR professionals and judges can meet to discuss the role of ADR.
The concluding report explicitly states that it "does not purport to describe a perfect end-
state for ADR or its role in the Civil Justice System." The Working Group appears to be aiming
for a system akin to that of British Columbia, where court-based mediation is socially
accepted and there is little to no disagreement as to whether a particular case is appropriate
for mediation. To litigation lawyers used to the numerous ADR tools available and the
obvious advantages they offer to aiding in the resolution of conflicts, many of the proposals
may seem too interventionist or even unnecessary. However, take-up varies and there are a
sizable number of litigants who represent themselves in our system. Overall, we therefore
see a benefit from more intervention and can appreciate the appeal of changes to court
documents or instructions to fully integrate ADR into the system. In the end, it will be

25
'Precedent in court of appeal ' (Wiley online library , -)
<https://plato.stanford.edu/Archives/win2021/entries/legal-reas-prec/notes.html> accessed 29 April 2023
26
Lewis Skilkin, 'Encouraging ADR: Civil Justice Council Publishes Final Report' (Lexology, 19 December 2018)
<https://www.lexology.com/library/detail.aspx?g=dbe77247-24f0-4494-b4a5-c75d4b3f467c> accessed 30 April
2023

7
interesting to see how many of the report's suggested recommendations are implemented
and what impact any reform has on culture and practise2728.

Recent Developments in Alternative Dispute Resolution (ADR).

ADR has helped many parties resolve their disputes with a third party using its many forms.
The pandemic has changed hearing practise in the court system. This shift has helped many,
but not all. ADR saves time, money, and mind and body from court hearings. ADR has saved
time for everyone, including the courts. because it helps the disputants avoid court. Virtual
ADR saves parties and solicitors time and eliminates back-and-forth. Video conferencing lets
them talk29. In mediation, the mediator can swiftly and simply communicate with each party
to establish an agreement. Like any new project, virtual ADR will need troubleshooting. It's a
huge step forward. ADR is now the only way to settle disputes quickly, cheaply, and
efficiently. ADR is easy and saves time and money, but it has certain drawbacks. Attorneys
have long fought technology. Individuals and lawyers must study and use technology more
than ever. Lawyers need intensive training to switch from offline to online. Some Indian
courts struggle to provide internet access to all. Secure data must be protected. The current
scenario, where COVID-19 has halted everything, must be discussed. COVID-19 has
disrupted business and the global economy like never before. Commercial disputes are rising
as parties strive to fulfil their contracts 30. Thus, the crisis may increase litigation, delay court
cases, and burden the judicial system. ADR can quickly resolve conflicts in this situation. This
pandemic caused virtual hearing in ADR3132.

Word Count: 2100

27
Lewis Skilkin, 'Encouraging ADR: Civil Justice Council Publishes Final Report' (Lexology, 19 December 2018)
<https://www.lexology.com/library/detail.aspx?g=dbe77247-24f0-4494-b4a5-c75d4b3f467c> accessed 30 April
2023
28
-, 'Benefits of alternative dispute resolution' (Local Court New South Wales, 7 March 2023)
<https://www.localcourt.nsw.gov.au/alternative-dispute-resolution/benefits-of-alternative-dispute-
resolution.html> accessed 30 April 2023
29
'Precedent in court of appeal ' (Wiley online library , -)
<https://plato.stanford.edu/Archives/win2021/entries/legal-reas-prec/notes.html> accessed 29 April 2023
30
Taylor & francis, 'Alternative Dispute Resolution During the Covid-19 Crisis and Beyond' (King's Law Journal,
25 February 2021) <https://www.tandfonline.com/doi/full/10.1080/09615768.2021.1886651> accessed 29
April 2023
31
Revati Magaonkar, 'Recent developments in the alternative dispute resolution (ADR)' (Ipleaders, 9 June 2021)
<https://blog.ipleaders.in/recent-developments-alternative-dispute-resolution-adr/> accessed 30 April 2023
32
Taylor & francis, 'Alternative Dispute Resolution During the Covid-19 Crisis and Beyond' (King's Law Journal,
25 February 2021) <https://www.tandfonline.com/doi/full/10.1080/09615768.2021.1886651> accessed 29
April 2023

8
 Question 3: Consider how the Practice Statement [1966] 3 All ER 77 introduced the concept
of constrained flexibility in order to alleviate the harsh rigidity of the doctrine of stare decisis.

In the annals of the history of legal practise in the United Kingdom, the issuance of the
practises statement in the year 1966 was a defining occasion. The practises statement that
was made in 1966 was a key turning point in the chronicles of the history of legal practise in
the United Kingdom. By publishing the Practise Statement (Judicial Precedent) in 1966 33, the
House of Lords brought the concept of limited flexibility into the theory of stare decisis 34.
This was done in an effort to clarify the doctrine's application. This represented a significant
advance in the application of the legal principle of stare decisis, which is often referred to as
binding precedent35. This made it feasible for judges to deviate from decisions that had been
made in the past, but in order to do so, they needed to be able to prove that the prior ruling
was "plainly incorrect." This made it possible for judges to deviate from judgements that had
been made in the past. This provided the opportunity for judges to come to different
conclusions than those that had been reached in the past. Because of the legal principle
known as "stare decisis," judges were required to acknowledge and respect previously
established legal precedents36. This was the case regardless of whether or not the judges
agreed with the decisions that established the precedents. This was the situation regardless
of whether or not the individual judges agreed with the precedents. It is possible that
decisions that were taken in the past will be applied to the circumstances of the present,
which may result in outcomes that are not equitable. This is due to the fact that it is feasible
that these decisions will be applied. Despite this, judges have been urged to continue the
practise of following precedent, with the understanding that it should only be applied in the
cases that involve the greatest number of stakes3738.

33
Practice Statement 1966 3 All ER 77
34
Solanki Sneha, 'What is stare decisis in simple terms' (Thomas Reutras, -)
<https://legal.thomsonreuters.com/blog/the-doctrine-of-stare-decisis/> accessed 29 April 2023
35
Cooper Louis bloom, '1966 and All That: The Story of the Practice Statement ' (Oxford academic, august
2009) <https://academic.oup.com/book/6233/chapter/149874481> accessed 27 April 2023
36
'The doctrine of stare decisis ' (Ipleaders, 2 March 2022) <https://blog.ipleaders.in/the-doctrine-of-stare-
decisis-legal-maxim/> accessed 29 April 2023
37
-, 'Practice Direction - Judicial Precedent [1966] 3 All ER 77 (HL)' (Oxford university press, -)
<https://learninglink.oup.com/static/5c0e79ef50eddf00160f35ad/casebook_28.htm> accessed 27 April 2023
38
'The doctrine of stare decisis ' (Ipleaders, 2 March 2022) <https://blog.ipleaders.in/the-doctrine-of-stare-
decisis-legal-maxim/> accessed 29 April 2023

9
The highest court in the United Kingdom is called the Supreme Court. Prior to its current
name, this institution was known as the House of Lords. In instances that involve legal issues
pertaining to the European Union or human rights, it is essential to follow the decisions of
the European Court of Justice, and in cases that involve legal issues pertaining to human
rights, it is required to follow the decisions of the European Court of Human Rights.
According to London Tramways v. London County Council (1898) 39, the House of Lords was
also bound by its own judgements until Lord Gardiner in the House of Lords published a
Practice Statement in 1966 that allowed only them to diverge from the earlier decisions as a
last option to serve justice. This statement was issued after London Tramways v. London
County Council (1898). Before this, the House of Lords was the only court that had the
authority to reverse decisions that it had previously made. Duncan v. Cammell Laird and
Company (1942)40 was overruled by the court in the landmark decision Conway v. Rimmer
(1968)41. This was a significant instance in which the Practice Statement was successfully
applied4243.

On the other hand, the landmark case of British Railways v. Herrington, which took place in
197244, is generally regarded as the first notable application of the phrase. The young boy,
who was only six years old at the time of the event, was electrocuted and suffered severe
burns when he walked from a playground onto a live railway line. At the time of the
occurrence, he was only six years old. The railway line was encircled by a fence; however, a
piece of the fence had been taken down, and the gap in the fence that had been created as a
result was frequently used as a cut-through to access to the park. Even though the
defendant was aware that there was a hole in the fence that had been for a few months, he
did not take any steps to address the issue 45. There was no obligation to exercise reasonable
care towards trespassers as a result of the precedent that was established by the case Addie
v. Dumbreck46. However, the House of Lords overturned their earlier decision and, with the

39
London Street Tramways Co Ltd v London County Council [1898] AC 375
40
Duncan v Cammell Laird & Co Ltd (Discovery) [1942] AC 624
41
Conway v Rimmer [1968] AC 910
42
-, 'Practice Direction - Judicial Precedent [1966] 3 All ER 77 (HL)' (Oxford university press , -)
<https://learninglink.oup.com/static/5c0e79ef50eddf00160f35ad/casebook_28.htm> accessed 27 April 2023
43
'Judicial Precedent' (E-lawresources , -) <https://e-lawresources.co.uk/index.php> accessed 27 April 2023
44
British Railways Board v Herrington [1972] AC 877
45
'British Railways Board v Herrington [1972] AC 877 House of Lords' (E-lawresources , -) <https://www.e-
lawresources.co.uk/British-Railways-Board-v-Herrington.php> accessed 28 April 2023
46
Addie v Dumbreck [1929] AC 358

10
help of the Practice Statement from 1966, came to the realisation that the defendant railway
company did, in fact, owe trespassers a duty of common humanity 47. This conclusion was
reached by relying on the Practice Statement from 1966. R v. Shivpuri (1986) 48 was the first
time that it was used as evidence in a legal proceeding including criminal charges. The issue
of whether or not an effort to commit a crime needs "more than merely preparatory act"
and the mens rea of an inchoate stage in order to be regarded an attempt to conduct a
crime is one that is addressed in English law 49. This is due to the fact that the actus reus in
question must have unknowingly connected to a lawful drug, rather than what the
defendant anticipated to be an unlawful substance. In other words, the defendant must
have been unaware that the lawful substance was involved. The matter at hand was taken
up for consideration by the House of Lords. The judicial panel, which is England's highest
court, came to the conclusion that it would amount to the crimes of attempted dealing in
and harbouring a restricted narcotic, with the purpose to dodge the restriction of the same
drug's importation. This was the conclusion that was reached by the judicial panel. Because
of this, the court reversed its own finding from the case Anderton v. Ryan 50, which had been
decided the year prior by applying the Practise Statement from 1966. The case had been
decided in the year before51.

By putting the Practice Statement into effect, it was made certain that a degree of
adaptability would be brought back into the process of writing the legislation. Indicating that
there is capacity for the law to develop at the same rate as the changes that occur in society,
the fact that past judgements can be overturned suggests that there is room for the law to
develop at the same rate52. In addition to being a feature that helps save time, precedent is
also an aspect that helps save money throughout the course of a project's lifetime. Courts
are able to circumvent drawn-out periods of litigation because they are obligated to adhere

47
'British Railways Board v Herrington' (-, -)
<http://www.safetyphoto.co.uk/subsite/case%20abcd/british_railways_board_v_Herrington.htm#:~:text=The
%20Decision,care%20was%20owed%20to%20trespassers> accessed 28 April 2023
48
R v Shivpuri [1986] UKHL 2
49
'R v Shivpuri (United Kingdom House of Lords)' (Casemine , 15 May 1986)
<https://www.casemine.com/judgement/uk/5a8ff8da60d03e7f57ece804> accessed 29 April 2023
50
Anderton v Ryan [1985] AC 560
51
'Judicial Precedent' (The Lawyer Student, 17 May 2013) <https://thestudentlawyer.com/2013/05/07/judicial-
precedent-in-judicial-practice/> accessed 28 April 2023
52
The doctrine of precedent' (Lindsy, 5 May 2017)
<chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://www.supremecourt.justice.nsw.gov.au/
Documents/Publications/Speeches/2017%20Speeches/Lindsay_20170505.pdf> accessed 29 April 2023

11
to rulings that have been rendered in the past. Because of this, the procedure of deciding
the legal judgement, which may commonly take a large amount of time, is sped up 53. This is
due to the fact that earlier cases that had facts that were sufficiently comparable would have
already had their decisions made5455.

On the other side, the doctrine's dedication to a stringent methodology is frequently

criticised for being inflexible. Any judgements that are judged unfair or unjust could have a
domino effect on lower courts because they are expected to follow the decisions made by
higher courts in the court hierarchy. This is because lower courts are required to follow the
decisions made by higher courts. As a defence for this, the House of Lords has the right to
stray from earlier verdicts in order to change decisions that were made under the Practise
Statement that were seen to be unfair. This is one way that the House of Lords might defend
itself. However, because it only hears a small percentage of cases, the House of Lords is not
responsible for the majority of the decision-making responsibility. Instead, this duty is
carried out by the lower courts. Even though it is widely acknowledged that prior decisions
can be relied upon, the fact of the matter is that doing so also makes the law more
complicated. It is not always easy to find relevant earlier decisions because there are millions
of cases that have been handled by courts. This is one reason why it can be tough. If an
incorrect decision from the past is applied to a subsequent case, it is possible that the case
will result in an unjust decision. As was noted earlier, the complexity of the law grows as
specific cases are evaluated and new standards of practise are formed. This contributes to
the growth of the complexity of the law. The cases of R v. Caldwell 56 and R v. G57, both of
which contributed to the ruling in Elliot v. C58. later on, make this quite evident59.

53
Wyner Adam zachary , 'Precedent & Procedure' (University of liverpool, -)
<chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://intranet.csc.liv.ac.uk/research/techreports/
tr2007/ulcs-07-002.pdf> accessed 29 April 2023
54
Wyner Adam zachary , 'Precedent & Procedure' (University of liverpool, -)
<chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://intranet.csc.liv.ac.uk/research/techreports/
tr2007/ulcs-07-002.pdf> accessed 29 April 2023
55
'Judicial Precedent' (Parliment uk, 26 July 1966)
<https://publications.parliament.uk/pa/ld199697/ldinfo/ld08judg/redbook/redbk45.htm> accessed 29 April
2023
56
R v Caldwell [1982] AC 341
57
R v G [2004] 1 AC 1034
58
Elliott v C [1983] 1 WLR 939
59
'Judicial Precedent' (Law Teacher, 2 September 2021) <https://www.lawteacher.net/lecture-notes/judicial-
precedent-1.php> accessed 29 April 2023

12
The statement that is included below was provided by LORD GARDINER LC on behalf of
himself and the Lords of Appeal in Ordinary: Their Lordships are of the opinion that the use
of precedent is an essential basis upon which to determine what the law is and how it
should be applied to particular circumstances. It provides individuals with at least some
degree of confidence on which they are able to conduct their business and acts as a basis for
the orderly development of legal norms. Individuals are able to rely on this assurance 60.
Despite the fact that this is the case, Their Lordships are aware of the possibility that an
overly strict adherence to precedent could lead to unfairness in a single instance and could
unnecessarily restrict the appropriate growth of the legal system. They intend to modify the
practise that they have been adhering to as a result of this, and while they will continue to
consider past judgements of this House to be normally binding, they will depart from a
previous decision where it is appropriate to do so. They came to this conclusion as a result of
the fact that they have decided to change the practise that they have been adhering to61.

In this context, they will keep in mind the risk of retrospectively upsetting the basis on which
agreements such as contracts, property settlements, and tax arrangements have been made.
In addition, they will keep in mind the particularly pressing need for clarity with regard to
the legal system's criminal provisions. In this context, they will keep in mind the risk of
retrospectively upsetting the basis on which agreements such as contracts, property
settlements, and tax arrangements have been made. This statement is not intended to have
any influence on the way precedent is applied anyplace else but, in this chamber, 6263.

The practises statement provided the judges with the discretion to depart from past rulings
if they could demonstrate that the result was "plainly incorrect." This particular benefit was
one of the advantages that might be gained via utilising the practise statement 64. However,

60
Pin Andrea, 'Judicial Precedent' (Brill, 19 December 2022) <https://brill.com/view/journals/iric/2/2/article-
p246_002.xml> accessed 29 April 2023
61
Vanilla, 'Judicial Precedent' (Studocu, -)
<https://www.studocu.com/my/document/brickfields-asia-college/common-law-reasoning/judicial-
precedent/8100505> accessed 29 April 2023
62
Manamperi Vidushan , 'The doctrine of precedent provides guidelines for judicial law-making' (-, 22 August
2021) <https://www.linkedin.com/pulse/doctrine-precedent-provides-guidelines-judicial-vidushan-
manamperi> accessed 29 April 2023
63
'Precedent in court of appeal ' (Wiley online library , -)
<https://plato.stanford.edu/Archives/win2021/entries/legal-reas-prec/notes.html> accessed 29 April 2023
64
Vong David , 'Binding precedent & judicial law-making' (Law resources, -)
<chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://www.law.kuleuven.be/apps/jura/public/art/
21n3/vong.pdf> accessed 29 April 2023

13
in order to do so, the judges had to exercise a significant amount of discretion and take into
account not only the particulars of the case that was in front of them at the time, but also
the circumstances that had led to the verdict in the case that came before it as well as the
implications that their decision would have on a larger scale. As a result of this, the courts
were able to take into consideration the changes in social and legal traditions that had
occurred since the first case and come to judgements that were suitable for the
circumstances that existed at the time. This allowed the courts to come to decisions that
were appropriate for the circumstances that existed at the time6566.

Because of the practise statement, some of the severe rigidity that was associated with the
concept of stare decisis was reduced67. This made it possible for the administration of the
law to demonstrate larger degrees of flexibility, which was one of the main benefits of the
statement. This was made feasible by providing judges with the discretion to diverge from
their earlier rulings whenever they felt it was appropriate to do so 68. The legal system
developed as a result of this to become increasingly capable of giving decisions that were
not only fair and reasonable but also appropriate with regard to the particulars of the
circumstance that was at hand. Because of this, the normative statement on stare decisis
that was published in 1966 incorporated the idea of confined flexibility into the general
concept. This allowed the judicial system to diverge from earlier rulings when it was
determined that doing so was appropriate, while simultaneously ensuring that all relevant
elements were addressed before a judgement was reached6970.

Word count: 2100

65
Thomas David, 'Judicial Precedent' (Cilex journal, -) <https://cilexjournal.org.uk/journal/cilex-journal-june-
2016/updates/practice-and-procedure-update> accessed 29 April 2023
66
'Judicial Precedent' (Parliment uk, 26 July 1966)
<https://publications.parliament.uk/pa/ld199697/ldinfo/ld08judg/redbook/redbk45.htm> accessed 29 April
2023
67
The doctrine of precedent' (Lindsy, 5 May 2017)
<chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://www.supremecourt.justice.nsw.gov.au/
Documents/Publications/Speeches/2017%20Speeches/Lindsay_20170505.pdf> accessed 29 April 2023
68
Lamond Grant , ' Judicial Precedent & analogy in legal reasoning ' (Standford , 20 May 2006)
<https://plato.stanford.edu/Archives/win2021/entries/legal-reas-prec/notes.html> accessed 29 April 2023
69
'Practice statement (judicial precedent)' (-, 26 July 1966 )
<http://www.uniset.ca/other/cs2/19661WLR1234.html> accessed 29 April 2023
70
'Judicial Precedent' (Law reform, 13 March 1993) <https://www.lawreform.ie/_fileupload/consultation
%20papers/cpSentencing.htm> accessed 29 April 2023

14
Bibliography

Primary Resources

Addie v Dumbreck [1929] AC 358

Anderton v Ryan [1985] AC 560

British Railways Board v Herrington [1972] AC 877

Conway v Rimmer [1968] AC 910

Duncan v Cammell Laird & Co Ltd (Discovery) [1942] AC 624

Elliott v C [1983] 1 WLR 939

London Street Tramways Co Ltd v London County Council [1898] AC 375

Practice Statement 1966 3 All ER 77

R v Caldwell [1982] AC 341

R v G [2004] 1 AC 1034

R v Shivpuri [1986] UKHL 2

Secondary Resources

-, '4 Advantages of ADR over litigation' (Prowse Chowne Legal Counsel Patent & Trademark
Agents, -) <https://www.prowsechowne.com/blog/advantages-of-adr-over-litigation>
accessed 29 April 2023

-, '6 Advantages of Alternative Dispute Resolution' (Breakthrough Mediation, 26 Jan 2021)

<https://www.btmediation.com/advantages-of-alternative-dispute-resolution/> accessed 30
April 2023

-, '8 Reasons to Choose ADR over Litigation to Resolve Your Dispute' (Arbitration Resolution
Services, 22 March 2018) <https://www.arbresolutions.com/8-reasons-choose-adr-litigation-

15
resolve-dispute/?doing_wp_cron=1683003606.3328959941864013671875> accessed 29
April 2023

-, 'Advantages And Disadvantages of Litigation: A Quick Guide' (Robertsons Solicitors, 14

February 2022) <https://robsols.co.uk/advantages-and-disadvantages-of-litigation-a-quick-
guide/> accessed 29 April 2023

-, 'Alternative Dispute Resolution: Why Has It Become So Popular?' (HMC Lawyers, 24

November 2017) <https://hmclawyers.com/mediation-arbitration/alternative-dispute-
resolution-become-popular/#:~:text=Why%20has%20ADR%20become%20more,process
%20and%20lower%20the%20costs> accessed 28 April 2023

-, 'Benefits of alternative dispute resolution' (Local Court New South Wales, 7 March 2023)
<https://www.localcourt.nsw.gov.au/alternative-dispute-resolution/benefits-of-alternative-
dispute-resolution.html> accessed 30 April 2023

-, 'Practice Direction - Judicial Precedent [1966] 3 All ER 77 (HL)' (Oxford university press, -)
<https://learninglink.oup.com/static/5c0e79ef50eddf00160f35ad/casebook_28.htm>
accessed 27 April 2023

-, 'What is Alternative Dispute Resolution?' (FindLaw, 8 October 2020)

<https://www.findlaw.com/hirealawyer/choosing-the-right-lawyer/alternative-dispute-
resolution.html> accessed 30 April 2023

-, 'Why is ADR Encouraged?' (GHMA LAW, -) <https://ghma.law/why-is-alternative-dispute-

resolution-encouraged/> accessed 30 April 2023

'British Railways Board v Herrington' (-, -) <http://www.safetyphoto.co.uk/subsite/case

%20abcd/british_railways_board_v_Herrington.htm#:~:text=The%20Decision,care%20was
%20owed%20to%20trespassers> accessed 28 April 2023

'British Railways Board v Herrington [1972] AC 877 House of Lords' (E-lawresources , -)

<https://www.e-lawresources.co.uk/British-Railways-Board-v-Herrington.php> accessed 28
April 2023

16
Cooper Louis bloom, '1966 and All That: The Story of the Practice Statement ' (Oxford
academic, august 2009) <https://academic.oup.com/book/6233/chapter/149874481>
accessed 27 April 2023

'Judicial Precedent' (E-lawresources , -) <https://e-lawresources.co.uk/index.php> accessed

27 April 2023

'Judicial Precedent' (Law Teacher, 2 September 2021 ) <https://www.lawteacher.net/lecture-

notes/judicial-precedent-1.php> accessed 29 April 2023

Judicial Precedent' (Parliment uk, 26 July 1966)

<https://publications.parliament.uk/pa/ld199697/ldinfo/ld08judg/redbook/redbk45.htm>
accessed 29 April 2023

'Judicial Precedent' (The Lawyer Student , 17 May 2013)

<https://thestudentlawyer.com/2013/05/07/judicial-precedent-in-judicial-practice/>
accessed 28 April 2023

Katie Shonk, 'What is Alternative Dispute Resolution?' (Harvard Law School, 11 April 2023)
<https://www.pon.harvard.edu/daily/dispute-resolution/what-is-alternative-dispute-
resolution/> accessed 28 April 2023

Lamond Grant , 'Judicent precedent & analogy in legal reasoning ' (Standford , 20 May 2006)
<https://plato.stanford.edu/Archives/win2021/entries/legal-reas-prec/notes.html> accessed
29 April 2023

Legal information institute, 'Alternative Dispute Resolution' (Cornell Law School, -)

<https://www.law.cornell.edu/wex/alternative_dispute_resolution> accessed 28 April 2023

Lewis Silkin, 'Compulsory mediation?' (Lewis Silkin, 11 January 2018)

<https://www.lewissilkin.com/Insights/Compulsory-mediation> accessed 30 April 2023

Lewis Silkin, 'Encouraging ADR: Civil Justice Council Publishes Final Report' (Lexology, 19
December 2018) <https://www.lexology.com/library/detail.aspx?g=dbe77247-24f0-4494-
b4a5-c75d4b3f467c> accessed 30 April 2023

17
Manamperi Vidushan , 'The doctrine of precedent provides guidelines for judicial law-
making' (-, 22 August 2021) <https://www.linkedin.com/pulse/doctrine-precedent-provides-
guidelines-judicial-vidushan-manamperi> accessed 29 April 2023

Pin Andrea, 'Judicial Precedent' (Brill, 19 December 2022)

<https://brill.com/view/journals/iric/2/2/article-p246_002.xml> accessed 29 April 2023

'Practice statement (judicial precedent)' (-, 26 July 1966 )

<http://www.uniset.ca/other/cs2/19661WLR1234.html> accessed 29 April 2023

'Precedent in court of appeal ' (Wiley online library , -)

<https://plato.stanford.edu/Archives/win2021/entries/legal-reas-prec/notes.html> accessed
29 April 2023

'R v Shivpuri ( United Kingdom House of Lords)' (Casemine , 15 May 1986)

<https://www.casemine.com/judgement/uk/5a8ff8da60d03e7f57ece804> accessed 29 April
2023

Revati Magaonkar, 'Recent developments in the alternative dispute resolution (ADR)'

(Ipleaders, 9 June 2021) <https://blog.ipleaders.in/recent-developments-alternative-dispute-
resolution-adr/> accessed 30 April 2023

Rsi, 'Why Do Courts Use ADR?' (Resolution System Institute, -)

<https://www.aboutrsi.org/resource-center/why-do-courts-use-adr#:~:text=For%20example
%2C%20courts%20may%20believe,and%20with%20fewer%20court%20appearances>
accessed 29 April 2023

Sg courts, 'Alternatives to Trial' (Judiciarygovsg, -)

<https://www.judiciary.gov.sg/alternatives-to-trial> accessed 30 April 2023

Shane coons, 'Courts Often Encourage Alternative Dispute Resolution' (Shanecoonslaw, 1

January 2018) <http://shanecoonslaw.com/alternative-dispute-resolution-often-encouraged-
courts/> accessed 30 April 2023

Solanki Sneha, 'What is stare decisis in simple terms' (Thomas Reutras, -)

<https://legal.thomsonreuters.com/blog/the-doctrine-of-stare-decisis/> accessed 29 April
2023

18
Susan hopcraft, 'Can the Court require you to use alternative dispute resolution?'
(Wrighthassallcouk, 4 October 2019)
<https://www.wrighthassall.co.uk/knowledge-base/can-the-court-require-you-to-use-
alternative-dispute-resolution> accessed 28 April 2023

Taylor & francis, 'Alternative Dispute Resolution During the Covid-19 Crisis and Beyond'
(King's Law Journal, 25 February 2021)
<https://www.tandfonline.com/doi/full/10.1080/09615768.2021.1886651> accessed 29
April 2023

'The doctrine of stare decisis ' (Ipleaders, 2 March 2022) <https://blog.ipleaders.in/the-

doctrine-of-stare-decisis-legal-maxim/> accessed 29 April 2023

Thomas David, 'Judicial Precedent' (Cilex journal, -) <https://cilexjournal.org.uk/journal/cilex-

journal-june-2016/updates/practice-and-procedure-update> accessed 29 April 2023

Thomas reuters, 'Alternative Dispute Resolution (ADR)' (Practical Law, 2023)

<https://uk.practicallaw.thomsonreuters.com/0-107-6391?
transitionType=Default&contextData=(sc.Default)&firstPage=true> accessed 28 April 2023

Todd b carver and albert a vondra, 'Alternative Dispute Resolution: Why It Doesn’t Work and
Why It Does' (Harvard Business Review, -) <https://hbr.org/1994/05/alternative-dispute-
resolution-why-it-doesnt-work-and-why-it-does> accessed 30 April 2023

Vanilla, 'Judicial Precedent' (Studocu, -)

<https://www.studocu.com/my/document/brickfields-asia-college/common-law-reasoning/
judicial-precedent/8100505> accessed 29 April 2023

Vong David , 'Binding precedent & judicial law-making' (Law resources, -) <chrome-
extension://efaidnbmnnnibpcajpcglclefindmkaj/https://www.law.kuleuven.be/apps/jura/
public/art/21n3/vong.pdf> accessed 29 April 2023

Wyner Adam zachary , 'Precedent & Procedure' (University of liverpool, -) <chrome-

extension://efaidnbmnnnibpcajpcglclefindmkaj/https://intranet.csc.liv.ac.uk/research/
techreports/tr2007/ulcs-07-002.pdf> accessed 29 April 2023

19
20