That issue is this: even if the court has the formal power to compel ADR, what is the practical point of exercising that power against a party who (rightly or wrongly) does not wish to negotiate?

Recognising this point, Dyson LJ in Halsey said as follows:

“Even if (contrary to our view) the court does have jurisdiction to order unwilling parties to refer their disputes to mediation, we find it difficult to conceive of circumstances in which it would be appropriate to exercise it. We would adopt what the editors of Volume 1 of the White Book (2003) say at para 1.4.11:

“The hallmark of ADR procedures, and perhaps the key to their effectiveness in individual cases, is that they are processes voluntarily entered into by the parties in dispute with outcomes, if the parties so wish, which are non-binding. Consequently the court cannot direct that such methods be used but may merely encourage and facilitate.”

If the court were to compel parties to enter into a mediation to which they objected, that would achieve nothing except to add to the costs to be borne by the parties, possibly postpone the time when the court determines the dispute and damage the perceived effectiveness of the ADR process. If a judge takes the view that the case is suitable for ADR, then he or she is not, of course, obliged to take at face value the expressed opposition of the parties. In such a case, the judge should explore the reasons for any resistance to ADR. But if the parties (or at least one of them) remain intransigently opposed to ADR, then it would be wrong for the court to compel them to embrace it.”

Churchill completely ignored this point. Rather, having decided that the court did have jurisdiction to order ADR, Sir Geoffrey Vos MR expressly refused to lay down fixed principles governing when such orders should be made, merely saying that such orders must “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.” In my view, this is so abstract and generalistic as to be completely meaningless.

In my view, it is a great shame that Dyson LJ’s lucid, practical and insightful analysis was not followed.