The Independent Review of Administrative Law and the Civil Justice Council review of Pre-Action Protocols need to highlight the tangible benefits that can be derived from the greater promotion and use of ADR within the current administrative law system, writes John Pugh-Smith.
At a time of the current round of consultation on changes to our Judicial Review system it seems timely to revisit the role of ADR in Public Law . Last month, the day after the Government commissioned Faulks’ Independent Review of Administrative Law closed its call for evidence on 26th October 2020 the Civil Justice Council opened its review of Pre-Action Protocols on 27th October 2020 (it closes on 18th December).
The IRAL (the acronym for the Faulks’ Independent Review and on whose panel my colleagues Vikram Sachdeva QC and Celina Colquhoun happen to be sitting) was launched in July 2020. It followed the Government’s manifesto commitment to guarantee that judicial review would remain available “to protect the rights of the individuals against an overbearing state, while ensuring that it is not abused to conduct politics by another means or to create needless delays”.
The information sheet also advised that the panel would consider “whether the right balance is being struck between the rights of citizens to challenge executive decisions and the need for effective and efficient government” and, that the work formed part of “the Lord Chancellor’s duty to defend our world-class and independent courts and judiciary that lie at the heart of British justice and the rule of law”.
The scope of the CJC’s current review is to look at all aspects of Pre-Action Protocols (“PAPs”) including their purpose, whether they are working effectively in practice and what reforms, if any, are required. The launch announcement advises that the CJC is particularly interested in looking at how PAPs are working for litigants with limited means; the costs associated with PAP compliance; the potential of PAPs in online dispute resolution, and the potential for PAPs to be streamlined. However, they advise that their focus is not closed, and “we are conducting a preliminary survey to obtain feedback and suggestions about what ought to be the focus of the review, and the priorities for reform”.
The provisional terms of reference relevant to this article include the following question:
8. Are PAPs a mechanism for de facto compulsory ADR prior to commencement of litigation? Should they be?”
Common to both the IRAL and CJC consideration of judicial reviews, I would suggest, is the need to take the promotion of ADR, with attendant costs sanctions, much more seriously and rigorously in this important aspect of administrative law. Indeed, given the Government’s manifesto recognition that judicial review must remain available “to protect the rights of the individuals against an overbearing state”, it is essential that it should operate more efficiently, effectively, and, with less needless adversarial confrontation .
Given, too, in this current world of remote working, Zoom meetings and on-line hearings that the CJC ADR Working Group’s Final Report dated November 2018  included, amongst its 24 recommendations the following:
ODR needs to establish itself in the public consciousness in order to realise its vast potential. It offers efficient and proportionate dispute resolution to a world that increasingly embraces online services and interactions in all aspects of life. Part of the solution will undoubtedly be standard setting.
The Halsey  Guidelines for the imposition of costs sanctions should be reviewed and should narrow the circumstances in which a refusal to mediate is regarded as reasonable.
Surprising as it may seem, mediation and its related less formalised facilitation applications, are generally considered only when a dispute has crystallised. Increasingly, however, the mediation process is being used more strategically for early dispute management and with impressive results. This is where early review and intervention are deployed with the aim of identifying and managing conflicts. The principles underpinning the process include: restarting communication between the parties; providing a ‘safe’ arena for open discussion about the problems and the options; encouraging consideration of options for settlement that can include those a court could not consider. Experienced practitioners frequently see the damage to contracts and valuable relationships and understand that structured negotiation at an earlier stage would probably have conserved more resources a good deal sooner and achieved a better commercial outcome. The involvement of an independent professional early on can help the parties rationalise the legal issues, rebuild the trust and the good will necessary to find agreement, assist with risk assessment and support the parties in making good decisions for themselves and their respective organisations. As facilitators, they can chair public meetings or oversee consultation exercises bringing an objective eye and guidance to ensure that issues are addressed and not buried.
Co-incidentally, this type of pragmatic and proactive approach is not new. Indeed, it reflects the aspirations contained in the Government’s Dispute Resolution Commitment, announced by the then Justice Minister, Jonathan Djanogly MP, on 23 June 2011. It included:
- Being proactive in the management of potential disputes and in working to prevent disputes arising or escalating, in order to avoid the need to resort to the use of formal dispute mechanisms wherever possible.
- Using prompt, cost effective and efficient processes for completing negotiations and resolving disputes.
- Choosing processes appropriate in style and proportionate in costs to the issues that need to be resolved.
- Recognising that the use of appropriate dispute resolution processes can often avoid the high cost in time and resources of going to court.
- Educating employees and officials in appropriate dispute resolution techniques, in order to enable the best possible chance of success when using them
Mediation and the Courts
The case for mediation generally is widely accepted. As far back as 2001 Lord Woolf LCJ articulated the capability of this field to embrace mediation. In Cowl v Plymouth City Council  EWCA Civ 1935 at para. 1 he remarked:
“The importance of this appeal is that it illustrates that, even in disputes between public authorities and the members of the public for whom they are responsible, insufficient attention is paid to the paramount importance of avoiding litigation whenever this is possible. Particularly in the case of these disputes both sides must by now be acutely conscious of the contribution alternative dispute resolution can make to resolving disputes in a manner which both meets the needs of the parties and the public and saves time, expense and stress.”
Further, at paragraph 27:
“This case will have served some purpose if it makes it clear that the lawyers acting on both sides of a dispute of this sort are under a heavy obligation to resort to litigation only if it is really unavoidable. If they cannot resolve the whole of the dispute by the use of the complaints procedure they should resolve the dispute as far as is practicable without involving litigation. At least in this way some of the expense and delay will be avoided.”
Quoting Lord Neuberger’s key note address on 12 May 2015 to the Civil Mediation Council’s Annual Conference:
“First, mediation is quicker, cheaper and less stressful and time-consuming than litigation. Secondly, mediation is more flexible than litigation in terms of potential outcomes. Thirdly, mediation is less likely to be harmful to the long term relationship between the parties. Fourthly, mediation is conducted privately, under less pressure and in somewhat less artificial circumstances than a court hearing. Fifthly, it is far more likely that both parties will emerge as ‘winners’ or at least neither party will emerge as a disgruntled ‘loser’”
By way of a recent example, in the context of judicial review, the case of R (Shirley Archer) v HMRC  EWCA Civ 1021 is instructive in several respects. It involved a substantial claim by Mrs Archer to recover the costs of her judicial review proceedings concerning an accelerated payment notice or “APN” issued to her by HMRC in 2014 of £6,116,598.95 in respect of a tax scheme she had deployed in order to avoid tax on a capital gain of £15.3m in the 2005/06 tax year. Under the APN regime, there is no right to apply to HMRC or to the tax tribunal to postpone payment of the tax demanded. However, section 222 of Finance Act 2014 allows the taxpayer to make representations to HMRC objecting to the APN and/or the amount demanded if the taxpayer believes that the statutory conditions for issuing the APN were not met or the amount shown in the notice is incorrect. Mrs Archer’s APN was issued on 4 November 2014 and the 90 days for payment of the tax ended on 5 February, 2015. Yet less than four weeks after the issue of the APN, the legal services department of KPMG wrote to HMRC on 28 November, 2014 stating that they would be applying for a judicial review and that they would be sending a copy of the sealed claim form when it had been issued by the Administrative Court. In fact, the claim form was issued on the same day although not served on HMRC until 2 December, 2014. KPMG then made representations under section 222 of Finance Act 2014 but not until two weeks after service of the judicial review claim form. On 22 December, 2014, HMRC withdrew the APN, but in their defence against the judicial review, said that (1) KPMG’s letter had failed to comply with the pre-action protocol for judicial review and in any event was written on the date the claim form was issued; and (2) the claim was premature because Mrs Archer had not exhausted her statutory remedies. It was argued on behalf of Mrs Archer that HMRC should pay the whole cost of the judicial review because Mrs Archer had been fully successful in her claim. Total costs were put at £601,552.20, including that of Mrs Archer’s husband who had faced a similar APN. This level of costs was described by the judge hearing the original costs application as extra-ordinary, particularly as there had been no detailed preparations at that stage for a trial.
The Court of Appeal dismissed the claim for costs. Henderson LJ held that Parliament must have intended taxpayers to take advantage of section 222 before having resort to judicial review. Judicial review is a remedy of last resort and the facility to make representations to HMRC under section 222 provides a relatively cheap and simple way for a taxpayer to challenge an APN without resorting to the Administrative Court. A further ground to refuse costs was held to have been the litigation conduct of Mrs Archer’s advisers. The Court remarked that no serious attempt had been made by KPMG to comply with the pre-action protocol for judicial review. Indeed, HMRC had been presented with a fait accompli on 24 November, 2014 instead of being given time to respond. Far from using judicial review as a last resort, KPMG had employed it as the first line of attack and the very substantial costs of preparing the proceedings had already been incurred and were not recoverable.
Nevertheless, it has to be recognised that, unlike litigation, where the dispute will always be resolved one way or the other, a mediation may not deliver a settlement on the day. There are many reasons why some mediations do not settle. It is rare for those mediations to be a complete waste of time and money: issues may be narrowed and some resolved or discarded, priorities better understood, options and opportunities identified and even if the result is a heightened determination to litigate then arguably that is a result. For local authorities in particular, this can be of real value when justifying a course of action to cabinet members.
Much depends on the type of ADR used; and below are some of the benefits that have been identified by those who have engaged in mediation in particular:
- It has a different tone and atmosphere to litigation which tends to foster agreement.
- It is flexible and can be adapted to the particular characteristics of the parties and the dispute.
- The process is usually by consent, and if not the attendance then certainly the participation and any agreement reached thereby giving the parties greater control over their decisions.
- The parties can choose the third party to mediate or arbitrate the dispute.
- The parties can choose the input from the third party i.e. whether it is helping the parties to formulate their own propositions or when asked to use his/her expertise to offer independent views to the parties.
- The parties can choose how the mediation is conducted; and it is one of the core skills of the mediator to adjust the process to facilitate the conduct of the negotiations in consultation with the parties and their legal advisers.
- The negotiations and the outcome can be confidential.
- It can be cheaper and quicker than litigation. Most mediations only last one day.
- It can be used to settle all or part of a dispute.
- It can be used to narrow issues.
- The outcome can be by way of formal agreement or otherwise as circumstances dictate.
- A far wider range of outcomes (e.g. an apology or an explanation) is available, rather than the narrow range of remedies available to the Court.
- It can improve and restore relationships between the parties which is particularly important in sectors where there are fewer players or the costs of termination greatly outweigh the quantum in a particular dispute.
Save in a very few cases, what a claimant is trying to achieve in a “public law challenge” is the best outcome for that particular claimant. There is therefore no principled reason why that outcome should be achieved by way of Judgment rather than a mediated settlement. Seemingly, the fact that the vast majority of judicial review claims settle  suggests that having a public airing of the issues is not, for most claimants, a priority.
The second consideration goes to the nature of public law disputes. Whereas in private law disputes, parties are free to reach settlements that are based on their interests rather than legal entitlements, it can be rather different in a judicial review claim. There can be issues to consider such as vires, resources and issues of wider public interest that might limit the scope for settlement. It seems to us however that this concern can, in the vast majority of cases, be ameliorated by having a mediator who is familiar with the powers and decision-making processes of the public body in question or with the area of law in dispute and who is able to reality check the proposed settlement with the public body to ensure that it is one that the public body can properly agree. We discuss below the particular issues that arise in this respect in mediating disputes in relation to those who lack capacity.
The third consideration is a practical one. The majority of judicial review disputes settle without requiring any sort of intervention from the Court. The nature of the remedies in judicial review is such that public bodies can avoid the challenge simply by agreeing to reconsider and come to a fresh decision. This is often the quickest and cheapest way out of a dispute for a public body. In this context many practitioners consider that mediation has perhaps a limited role to play in public law disputes. We are not so sure that this is the case. In the first instance it seems to us that mediating a dispute early on is likely to lead to substantial cost savings as well as provide greater certainty over likely outcomes. Further, the fact that the mediation may well lead to the public body reconsidering the decision at hand is precisely what may make it an attractive option for claimants as, in effect, it is all that they can hope to achieve through the judicial review process.
Dispute suitability for ADR
Clearly, not all disputes are suitable for this kind of dispute resolution. Factors to consider include the following:
- the nature of the dispute or claim
- whether the claim can be settled by negotiation
- what outcome the client wants
- what added value the involvement of a mediator might bring
- whether the client wants to be involved in the decision-making process
- time considerations – is it urgent?
- cost considerations – what will it cost to mediate, and how does this compare to the anticipated cost of litigation.
Indeed, factors that might make a dispute unsuitable for anything other than litigation include:
- The nature of the dispute, for example, those requiring the declaratory function of the Court or where injunctions or other coercive or prohibitive orders are required, perhaps with penal notices and powers of arrest attached.
- Cases which are less suited to mediation (although not necessarily wholly unsuited) would include claims based on alleged ultra vires issues, where ADR may not ultimately resolve the dispute, for example in the planning context where the impact of the decision is sufficiently wide that it may not be possible to engage with all those with an interest in the dispute, or alternatively where the agreement arising from the ADR requires a further consent which itself may give rise to objections from those who were not involved in the ADR process.
- The personalities of those involved in the dispute. There are some litigants who struggle with any decision making or are unable of reaching an agreement with a statutory body with whom they perceive themselves to have been at war or who renege on agreements; and so a court order along with the ability to enforce that order is required. Attempting ADR may for such cases simply add another layer of cost and more delay into the process. Having said that, there have been some remarkable success in mediating with such people.
On the other hand, we suggest that ADR, and in particular mediation should be actively considered where:
- The dispute is complex, involves multiple parties and were it to be litigated would take up significant court time. Active consideration is being given to what, if any, parts of that dispute can be mediated so that the contested issues are reduced.
- It is important to conserve the relationship between the parties, so for example where they need to work together in the future.
- Negotiations have broken down but where the introduction of an independent neutral third party can help re-start dialogue especially where the parties are in general agreement about the course of action required to resolve a dispute but need help to agree the detail.
- A claim for damages is included in judicial review proceedings. The flexibility of the mediation process enables the parties to take a more needs based view of the dispute.
- There is an imbalance between the parties, making negotiation very difficult, for example, where one party is not legally represented and the mediator can ensure a more level playing field and that all voices are heard.
Mediation examples in the Administrative Court
Unfortunately, because of the confidential nature of both ADR and, largely, pre-action and related judicial review correspondence it is difficult to point to any specific examples, bearing out the types of case identified above, other than anecdotally. Furthermore, from the study work undertaken by Sophie Byron of University Birmingham in conjunction with Richard Gordon QC of Brick Court Chambers (reflected in the 2016 Hart Judicial Review Conference paper footnoted at  above), and from a peer group conference held in October 2016 (attended by myself and other representatives of the various specialist Bar associations, and, judicial representatives including Lord Carnwath SCJ and Sir Ernest Ryder) it was clear that there had been a surprising uptake and success in the use of ADR across the broad range of specialisms covered by administrative law. Unfortunately, the Birmingham study project had to cease thereafter due to lack of funding and manpower to undertake a detailed study of Administrative Court files.
Nonetheless, the recent decision of Sir Ross Cranston, sitting as a Deputy High Court Judge, in R (Janice Hemms) v Bath and North East Somerset Council & Chubb  EWHC 2721 (Admin), and, in which my colleague, Katherine Barnes successfully acted for the council, is instructive; for it is a good illustration of the concern by some Administrative Court judges that pre-issue negotiation has not been attempted. Here, the judicial review was against the council’s decisions, for the second time, not to issue a planning revocation notice under section 102 of the Town and Country Planning Act 1990 against stock fencing within an AONB, erected by Ms Chubb, as they did not consider it expedient. By way of postscript, the Judge, who happened to be a former Head of the Administrative Court, and, I understand, was the prime mover behind its initial Judicial Review Guide in July 2016 , remarks as follows:
58. In addressing the court, the interested party, Miss Chubb, stated that if the claimant had approached her at the time of the alterations to her property, the situation could have been resolved. For the claimant Ms Dehon replied that it was not through lack of trying on the claimant's part that matters had escalated and has added that the claimant had made a number of attempts to mediate. Miss Chubb has written to the court to dispute aspects of Ms Dehon's claims. It is not for me to establish the facts, to attribute blame, or to suggest a resolution. However, I understand from what Ms Chubb told me that she is now willing to negotiate to resolve matters between the claimant and herself. Given Ms Chubb has given this indication in open court I very much hope she will follow through with a suggestion to the claimant as to how matters can be resolved. That would be to the public benefit, not just to the benefit of these two parties.”
Given that the CJC ADR Working Group’s 2018 Final Report suggested a suitable “way forward” using the “Notice to Mediate” procedure it is disappointing that no active steps have yet been taken, publicly, to prepare the ground. Utilised by the Canadian Court system in British Columbia the Report commented as follows:
A way forward: Notice to Mediate:
“8.39 The advantage of automatic, self-policing ADR systems like family MIAMs  is that they do not require judicial intervention or court time. We think that the most promising first step in this direction could be the introduction of the Notice of Mediate scheme as already operating in British Columbia.
8.41 Essentially if one party issues a Notice to Mediate, being a formal invitation by one party to the other to mediate, then a mediation will kick into action and a mediator will automatically be appointed from a Court-approved roster (if the parties do not agree on a mediator themselves) without any consideration or intervention by the Court. The Court has a residual supervisory role but the indications we have from practitioners who use the system is that it has had the effect of making the court-based mediation system culturally normal, that there is very little or not satellite dispute about the fitness or appropriateness of a given case to mediate and that these have proved in British Columbia to be successful steps towards increasing public awareness and acceptance of mediation as a technique.
8.42 If we introduce a Notice of Mediate system a number of critical policy decisions arise.
(a) Should there be an ability to refer to court if the Notice to Mediate is issued by an unreasonable opponent who you believe will never settle. A striking feature of the British Columbia scheme is that the only basis for relief from the obligation to mediate is attendance at a previous, failed, mediation.
(b) Are the stakeholders sufficiently confident there is an ADR product of guaranteed quality available as a default system, just as there is a system of court rostered mediators available in British Columbia?
(c) Under the British Columbia scheme sanctions for ignoring a notice to mediate include striking out the defaulting party as well as costs orders. Rule-makers would have to decide whether that was too severe a sanction under a Notice to Mediate procedure in England and Wales.”
Whether or not such an approach falls within the current IRAL and CJC reviews, each should, at the very least, strongly recommend that a more effective “triage system” be adopted by the Administrative Court. In my view such a system both as part of Pre-Action Protocol requirements and also at permission stage. This should make it a requirement that the prospective parties should explain what steps have been taken to use ADR, why they have, so far failed, and, whether they could still be utilised .
Furthermore, greater use should be made of stays to the proceedings, similar to that now adopted by the Upper Tribunal (Lands Chamber) in Section 16 of its new 2020 Practice Direction  (19th October 2020). In such a way the parties could then have time for some or more meaningful dialogue with the procedural “time-clock” paused.
From my experience, acting both as retained counsel and neutral dispute resolver, the use of “stays” can work, albeit not in every situation where the challenge has been commenced. Nonetheless, despite the even stricter time limits applying to Planning Court challenges, it can work well, to which I can give testimony as the appointed mediator who helped resolve a complex heritage related judicial review with multiple parties. We did it in an intensive month of “shuttle diplomacy” , worthy of Henry Kissinger, both in plenary sessions and working with the parties; but the success of the dispute resolution process was in no small to the willingness, particularly of the planning authority and the actual developer, to achieve a swift resolution to enable construction to commence within a tight window of opportunity.
So, by way of an initial response to the CJC’s Review question (8) the current Judicial Review PAP is certainly not a mechanism for de facto compulsory ADR prior to commencement of litigation; but it should be, and, as sensibly and swiftly as is achievable.
Indeed, in the current climate, both the IRAL and CJC reviews need to highlight to Government and to the Judiciary, particularly when sitting in the Administrative Court, the tangible benefits that can be derived from the greater promotion and use of ADR within the current administrative law system. Furthermore, they need to explain that there are simple but effective ways of conveying these benefits, and, achieving a greater level of success.
Finally, there is the necessary reminder that, with the current crises, all active encouragement of a less adversarial and more nuanced approach to administrative law disputes can only improve the quality, speed and certainty of decision-making, reduce the uncertainties arising from the threat of potential legal challenge with its consequent costs and delays, and, lead to a step change in the improvement of relationships, and long-term outcomes. As benefits in the wider public interest they are both desirable and necessary at any time but especially at such a time as we are in at present.
A Podcast version of this article can be accessed via this link: https://www.39essex.com/that-adr-feeling/
John Pugh-Smith FSA FCIArb practises as a barrister from 39 Essex Chambers. He is a member of the RICS President’s appointment panel as an arbitrator, independent expert and mediator, and, a member of the Association of Northern Mediators. He also acts as a technical adviser to the All Party Parliamentary Group on Alternative Dispute Resolution (APPG ADR) and is a member of the Bar Council’s ADR Panel.
 See Local Government Lawyer “Bringing it Home” (July 2018): based on a paper presented by my colleague, Katie Scott and myself at the Lawyers in Local Government Conference in March 2018
 Information provided by Sophie Byron, University of Birmingham, following a Pilot Study as presented by her to The Hart 10th Annual Hart Publishing Judicial Review Conference (Dec. 2016): 60% of all disputes are settled before issuing proceedings (after Pre-Action Protocol Letter (‘PAPL’)); 34% of all claims are settled/withdrawn after the Claim is issued; and of the remaining cases 40% were granted permission, and, of these 63.6% settled before a full hearing. Only 46 cases out of a sample of 1000 disputes with a PAPL reached a full hearing
 The current 2020 version, nevertheless, remains rather lacking in punch on the consequences of not actively pursuing ADR, the limited references are in the following terms:
5.2.6. Stage one of the Protocol requires the parties to consider whether a method of alternative dispute resolution (“ADR”) would be more appropriate. The Protocol mentions discussion and negotiation, referral to the Ombudsman, and mediation (a form of facilitated negotiation assisted by an independent neutral party).
12.2.1. The parties must make efforts to settle the claim without requiring the intervention of the Court. This is a continuing duty and, whilst it is preferable to settle the claim before it is started, the parties must continue to evaluate the strength of their case throughout proceedings, especially after any indication as to the strength of the case from the Court (such as after the refusal or grant of permission to apply for judicial review). The parties should consider using alternative dispute resolution (for example, mediation) to explore settlement of the case, or at least to narrow the issues in the case.
 Mediation Information and Assessment Meeting
 For example, where a procedural error could be overcome by a fresh round of, or, more intensive consultation and/or re-presentation to the decision-maker (e.g. to Committee Members)
16.0 Stays of proceedings and alternative dispute resolution (“ADR”)
16.1 Parties may apply jointly to the Tribunal at any time for a short delay in the proceedings (referred to as a “stay of proceedings”) to allow time for them to reach agreement outside the Tribunal process by negotiation or alternative dispute resolution (“ADR”). No fee is payable for such an application.
16.2 If both parties apply jointly the Tribunal will usually grant a stay of the proceedings for up to two months to allow mediation or another form of ADR to be attempted. During the stay the parties will not be required to take any step in the proceedings other than to engage actively in efforts to reach agreement.
16.3 A second or longer stay may be granted if the parties satisfy the Tribunal that it is justified and has a good chance of leading to a settlement. A fee must be paid for such an application. A second or subsequent stay may only be granted by a Judge or Member.
16.4 The Tribunal will not grant lengthy or repeated stays where there is no evidence of progress being made towards a settlement of the dispute. If final agreement has not been reached after a second stay the Tribunal will usually expect the parties to continue negotiations, including ADR, while preparations are made for the final hearing of the case.
16.5 If a party unreasonably refuses to engage in ADR at the request of another party the Tribunal will take that refusal into consideration when deciding what costs order to make at the end of the proceedings, even when the refusing party is otherwise successful. The Tribunal will not treat every refusal of ADR as unreasonable, for example, where the chances of settlement are reasonably considered to be too low