The rules which govern the conduct of civil cases in England and Wales, the Civil Procedure Rules (“the CPRs”), don’t often feature in this column, but bear with me, because a recent change which came into force on October 1^st 2024, might actually be something of a hidden gem for journalists and publishers…

Following a decision by the Court of Appeal earlier this year, the CPRs have been amended by giving the Courts the power to order that the parties to a dispute must engage in Alternative Dispute Resolution (ADR) ahead of proceeding to a trial.

Put simply, ADR can refer to any method of dispute resolution that doesn’t involve going to court.  ADR can take various forms, but perhaps the most well-known is mediation.

And why is this of interest or relevance to the fifth estate?

Nobody wants to be on the receiving end of a Court claim, especially in these difficult financial times for the industry, where literally every penny counts.  But sometimes, litigation just cannot be avoided.

ADR is often a quicker, more flexible, and (crucially) a less expensive way of resolving disputes when compared to the costs of traditional litigation.

Accordingly, knowing that there is now a mechanism which can be used to force your opponent to the negotiating table, will surely help control the cost of the exercise.

In addition, settlements agreed through the ADR process can be kept confidential, allowing negotiations to be full and frank.  Experience shows that claims are more likely to settle than those which proceed straight to court.

The issue for journalists and publishers is that litigation is phenomenally expensive, and any damages that might be awarded to a successful Claimant are dwarfed by the accompanying costs orders.  There aren’t many publishers who can afford to bear these costs.

And dare I say that it is not unknown for some Claimants and their advisors to try to prolong litigation, in the hope and expectations of padding their claim for costs?  Surely not!

But now, any such strategy can now be countered by the Court ordering the parties to talk to each other.

This development represents a significant change in the approach of the courts to the idea of ADR.  Until now, the courts were strictly prohibited from forcing parties to engage in mediation, arbitration or any other form of non-judicial dispute resolution.  It was felt that to do so would be an unnecessary infringement on the right of the individual to have unfettered access to the court.

However, the Court of Appeal decided differently: that the modern position is that “the court can lawfully stay existing proceedings for, or order, the parties to engage in a non-court-based dispute resolution process”, and that this “does not impair the very essence of the claimant’s right to proceed to a judicial hearing, and is proportionate to achieving the legitimate aim of settling the dispute fairly, quickly and at reasonable cost”.

It’s not an absolute certainty that ADR will be ordered in every case.   The Court still retains the discretion to determine whether such an order would be proportionate in the dispute at hand.  Moreover, the new powers of the court do not weaken the right of a party to have their ‘day in court’.

However, the underlying policy, that the courts must do their bit to help to limit costs and prevent the rush to litigation that is so often seen in cases concerning libel and privacy, is obviously a step in the right direction.

Mistakes happen from time to time, and in the world of news publishing, mistakes can be very expensive.  But perhaps the obscure world of the CPRs might well be a turning point to help ease the pressure on a hard -pressed industry.  Let’s hope so!