Writing in NLJ this week, John McElroy and Dr Kirstie Imber of Fieldfisher examine how courts apply the ADR reforms introduced in October 2024. Judges can compel participation, while unreasonable refusal or silence may carry financial consequences.
Two decisions illustrate the limits. In Grijns, successful defendants received indemnity costs where the claimant’s conduct and delayed disclosure prevented productive ADR. In MJS Projects, a structural engineer reasonably declined mediation while seeking clarity on the technical issues underpinning a professional negligence claim.
Both decisions turned on their facts; neither provides permission to disregard settlement options. The Halsey factors remain relevant alongside the amended rules.
The authors describe the judgments as an ‘important reality check’. Practitioners should assess appropriate ADR throughout proceedings and document clients’ reasons for delaying or declining it, protecting them against avoidable expense and adverse rulings.
