Under scrutiny: parties’ litigation behaviour

• Alternative dispute resolution: a significant aspect of the civil procedure architecture.
• Unreasonable behaviour and indemnity costs: penalties for refusing to engage.

Since Woolf, successive civil justice reforms have emphasised the significance of alternative dispute resolution (ADR), which has increasingly become a significant aspect of the civil procedure architecture. Indeed, the importance of ADR was recently reinforced by the decision reinforced by the decision in Lomax v Lomax [2019] EWCA Civ 1467, [2019] All ER (D) 87 (Aug) in which the Court of Appeal held that the courts could, as part of their case management powers under CPR 3.1(2)(m), order the parties to engage with judicial early neutral evaluation. It is also well established that the courts will not hesitate in penalising a party in costs (eg by ordering that costs be paid on the indemnity basis) for failing to engage with an appropriate ADR procedure.

The recent case of BXB v Watch