In a significant legal development, a court has ruled that parties must engage in alternative dispute resolution (ADR) before their dispute over costs can proceed.
This unprecedented ruling involves a former Conservative MP, Charlie Elphicke, and Times Newspapers, who have been ordered to resolve their costs argument through ADR. This decision marks a potential shift in how costs disputes may be handled in the future.
King’s Bench Master Victoria McCloud, in her final judgment before retirement, articulated that failure by either Elphicke or Times Newspapers to engage in ADR would necessitate justification to the court. Should their reasoning prove insufficient, they could face sanctions.
The context of this ruling is rooted in Mr. Elphicke’s libel case against Times Media Ltd over articles published in 2018 regarding allegations of sexual assault against him. Although he discontinued the libel claim following his conviction for sexually assaulting two women, Elphicke sought to contest the usual cost burden. Master McCloud identified breaches of the CPR, warranting a 20% reduction in Times Media’s costs, which are now subject to detailed assessment.
Master McCloud referenced recent judgments, notably the Court of Appeal’s decision in Churchill, as influencing this approach. She pointed out the expensive and protracted nature of detailed assessment proceedings which can sometimes rival the cost of full trials. Therefore, she opined, it would be negligent for a judge not to order ADR before such proceedings commence.
Moreover, Master McCloud expressed her expectation that mandatory ADR orders would become standard practice unless costs are agreed upon beforehand. Drawing from her experience as a deputy costs judge, she observed that extensive hearings often concluded pragmatically once detailed discussions occurred, underscoring the practical benefits of early ADR engagement.
Jack Ridgway, chair of the Association of Costs Lawyers (ACL), praised Dr. Victoria McCloud’s leading role in advancing ADR considerations. He indicated that her final ruling might establish a new benchmark for addressing costs disputes, emphasising the potential necessity of ADR across various legal disagreements, facilitated by the expertise of Costs Lawyers.
This ruling could signify the beginning of a transformative era in legal cost dispute management, where ADR becomes the default protocol, reducing burdens on the court system.
