Courts have little option but to award monetary damages to reflect a wide range of wrongs.
Informal tariffs exist for complaints ranging from a broken leg to inconvenience while your car is repaired. The system works so long as the complaining party wants cash. But in some cases the claimant wants something else. One advantage of alternative dispute resolution (ADR) is that it can provide a way of allowing parties to let off steam, or ask for an apology, which may be what they really want.
The courts are obliged by the CPR to actively manage cases, and the parties have a duty to help. That includes encouraging the use ADR.
Two recent Court of Appeal judgments have emphasised the benefits of ADR, and that the courts will take a dim view of parties who fail to consider it.
Susan Dunnett - Dunnett v Railtrack (22.202) - kept horses in a field next to the Swansea to London railway line. A self-closing gate from the field leading on track was used (unlawfully) by children. Railtrack replaced the gate with one that did not close itself. Railtrack refused Dunnett's request for the new gate to be locked. In due course the gate was left open, and three horses strayed onto the line and were killed.
For reasons that do not concern us here, Dunnett lost her claim, appealed, and lost the appeal. In the usual course of events, she would have been ordered to pay Railtrack's costs. But at an earlier stage of the proceedings, Dunnett had, on the advice of the judge, asked Railtrack if the parties could try ADR. Railtrack refused. Because of that refusal, the Court of Appeal declined to order Dunnett to pay Railtrack's costs.
In the other recent case, Cowl and others v Plymouth City Council (14.12.01), the Court of Appeal considered an application for judicial review of a decision by the council to close a residential care home in which the claimants lived. The parties were not a long way apart on what needed to be done. They agreed that a full assessment of the effect of such a decision was needed, and that such an assessment had not been carried out. There was, however, a question over the assessment's timing.
After the Court of Appeal made its initial views clear, the parties reached agreement. The court criticised that this decision could have been achieved, with significant cost savings, at an earlier stage. Lord Woolf concluded that if the parties had found themselves unable to reach agreement they should have recruited a mediator to help. He went on to emphasise that the failure to use ADR sensibly when public money is at stake is 'indefensible'.
These were both cases in which feelings were running high. In its decision in the Dunnett case, the court emphasised the benefits of ADR in such matters, as it offers a range of options beyond the power of the court. In giving his judgment, Lord Justice Brooke used the examples of clinical negligence claims and claims against the police as matters in which what the claimant sometimes really wants is an apology. Wise potential defendants use a similar approach to head off claims before they get started - how much less likely to sue is the person who falls and injures themselves if they are taken home in a taxi and sent flowers, rather than being immediately treated as a potential litigant?
That is not to say that more commercially based claims cannot benefit from ADR. The parties often have other interests, such as an ongoing business relationship or a reputation to protect, that might benefit from any dispute being kept out of court.
While it may look as though by promoting ADR the courts are trying to do themselves out of a job, this approach better meets the needs of some litigants.
The benefits of the flexible options offered by ADR are worth bearing in mind if there is a storm brewing on the horizon, while taking care not to make an admission of liability without carefully considering all the consequences. But if a matter gets as far as court, it certainly now seems that failure to explore ADR, if it was an appropriate option, will be frowned on, and potentially penalised.